END-USER LICENSE AGREEMENT (“EULA”)
The person, company or entity who has registered for an account with RapidFire Tools (“You” or “Licensee”) acknowledges and agrees that your use of the software from RapidFire Tools, Inc. (“Company”), a Georgia corporation with its principal place of business in Atlanta, Georgia, is subject to the terms and conditions of this End-User Licensed Agreement (“EULA”). THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU AND COMPANY FOR THE SOFTWARE PRODUCTS IDENTIFIED HEREIN WHICH INCLUDE COMPUTER SOFTWARE FOR THE COMPANY PRODUCTS, AND/OR COMPANY SERVERS WHETHER HOSTED OR LOCAL AND ASSOCIATED MEDIA AND DOCUMENTATION (COLLECTIVELY “LICENSED SOFTWARE”). BY COMPLETING DOWNLOADING, INSTALLING, ACCESSING OR UTILIZING THE LICENSED SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE WITH TERMS OF THIS EULA, DO NOT INSTALL OR USE THE LICENSED SOFTWARE AND REQUEST A REFUND FROM COMPANY OR PLACE WHERE YOU HAVE PURCHASED A LICENSE.
1. Protection/Ownership. The Company software, data collectors, scanners, software modules, websites, portals and other products (“Licensed Software”) are protected by copyright and other intellectual property laws. Company retains ownership of the Licensed Software at all times. The Licensed Software is licensed to Licensee for use subject to the terms set forth in this EULA.
3. Scope of License. You are allowed to install and use Licensed Software pursuant to the terms and conditions of Company’s use policies regarding installation and configuration of the Licensed Software. The Licensed Software is offered on a subscription basis (“License Fee”). You agree by accessing the Licensed Software to be responsible for all License Fees associated with said software. Unless the published terms specify otherwise, initial purchases of Licensed Software and renewals thereof are sold by annual subscription (even when paid for monthly, up-front annually or by some other payment plan) and may not be resold, shared, or distributed to other resellers, companies, or end-users. On renewal, Licensed Software will renew on the same payment terms (i.e. monthly or annual) as your original purchase unless you notify Company of your intent to change payment plans, which is your option. You cannot terminate a subscription that is paid for on a monthly basis until the end of the subscription period. Small and Mid-Sized Managed Services Providers (“MSP”) with revenue less than $50 million per year are licensed to use the unlimited versions of the Licensed Software on a per location basis, which means that all physical office addresses of the MSP and geographic MSAs (Metropolitan Statistical Area) supported (and not individual MSP client sites) need to purchase a separate software license and pay a separate License Fee. Large MSPs, those with revenue in excess of $50 million annually, must purchase one License Fee for the Licensed Software for each $50 million in revenue or for each physical location of the MSP or geographic MSA supported where the Licensed Software is being used, whichever is greatest. An MSP is a third-party organization that manages IT resources for customers in four areas: network and telecommunications, IT hardware infrastructure, applications, and security. MSPs who engage the services of a “Master” MSP must purchase their own copy of the Licensed Software even if the Master MSP already owns a license. Other service providers (ISPs, Telcos), Independent Software Vendors (ISVs), and IT departments must purchase one copy of the Licensed Software for each physical site where the Licensed Software is being used to generate reports or alerts.
For unlimited versions of Licensed Software, You do not need to purchase a separate copy for each of your customers.
All subscription renewals are billed to the account credit card, on file, on the established renewal date on an automatically recurring basis. For example, if You purchased an annual pre-pay subscription on the 10th of January, the initial charge will occur on the 10th of January and You will be charged again 365 days later (on the 10th of January). You may cancel a renewal subscription within the first 30 days of receipt of Your invoice for a full refund for any reason. After that date, you cannot cancel or terminate until the end of the annual subscription period. Buy-It-Now offers, event pricing and other special discounts provided during the initial annual subscription period, are not available on renewal or by reactivation of product subscriptions that were previously cancelled by You. Renewal pricing is based on standard published current rates then in effect at the time of renewal. If Company fails to receive a License Fee payment within ten (10) days after it becomes due, then You will additionally be obligated to pay interest on such amount from the day it was due until paid at the rate of 18% per year or the maximum rate of interest permitted by law. Company may suspend access to Licensed Software until your account is brought current, which in no event should be considered a revocation of the Licensed Software or waiver of Your obligation to pay for such.
4. 100% Satisfaction Guarantee. Provided that You schedule and complete our customer success training & onboarding within 30 days of purchase, if you are dissatisfied with our software for any reason whatsoever you may contact us via email at email@example.com to request a full refund. Please include Cancellation Request in the subject line and submit your customer login name or invoice number with your request to help us expedite the process. This refund policy applies only to purchases of Licensed Software directly from Company and not through distributors, OEM partners or other resellers who may extend their own guarantees. You may use the refund policy once per Licensed Software product purchased. Licensed Software is sold by annual subscription, even when paid for monthly or by some other payment plan. Refund policy applies to new purchases, not renewals. Turning Licensed Software on/off repeatedly or establishing new account credentials solely to circumvent the License Fee shall be considered an abuse of the 100% satisfaction guarantee provided herein and is strictly prohibited.
5. Transfer. Unless You are an authorized reseller of the Licensed Software by Company, to the maximum extent permitted by applicable law, Licensee may not resell or otherwise transfer for value the Licensed Software.
6. Assignment. Notwithstanding the foregoing, Licensee may assign all of its licensed rights and duties under this EULA to a third-party that: (i) directly or indirectly controls Licensee; (ii) is controlled by or under common control with Licensee; or (iii) purchases all or substantially all of Licensee’s assets; provided, however, that (a) Licensee gives written notice to Company of the transfer or assignment; (b) the permitted third-party assignee agrees to be bound by all the terms herein and completes and returns a registration card or other requested transfer documentation to Company; and (c) in no circumstance shall any transfer or assignment, unless specifically agreed upon in writing, (iv) release Licensee from any prior outstanding obligation under this EULA, or (v) allow Licensee or Licensee’s transferee or assignee, collectively, to utilize more licenses than the number of licenses authorized under this EULA.
7. Restrictions. You agree that this is a license only and that no title passes to You. You agree not to challenge Company rights in or otherwise attempt to assert any rights in the Licensed Software, except those provided under this EULA. You agree not to disclose, modify, decompile, translate, disassemble or reverse engineer the Licensed Software. You agree not to distribute, rent or lease the Licensed Software unless You are an authorized Reseller. You agree not to use the Licensed Software as a commercial hoster or application service provider. You agree not to use the Licensed Software except as expressly permitted under this EULA. You acknowledge that the Licensed Software contains information deemed confidential or otherwise proprietary to Company or a Third Party Owner, and You agree to handle the Licensed Software with at least the same degree of care employed with respect to Your own confidential or proprietary information. Certain unlimited versions of the Software may include restrictions designed to prevent abuse or misuse of the product. These restrictions are set by Company in its sole discretion.
8. Warranty/Remedy/Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY AND REMEDY SET FORTH BELOW ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, ORAL OR WRITTEN, EXPRESSED OR IMPLIED. Except as provided for in this EULA, no company, reseller, dealer, agent or employee is authorized to modify or add to the following warranties and remedies.
9. Company warrants that for a period of ninety (90) days following delivery of the Licensed Software the Licensed Software will perform substantially in accordance with Company’s user documentation accompanying the Licensed Software. Company does not warrant that the Licensed Software will meet Your requirements or that the operation of the Licensed Software will be uninterrupted or error free or that all defects will be corrected. This Limited Warranty is void if failure of the Licensed Software has resulted from accident, abuse, modification, or misapplication of the Licensed Software.
10. If You believe there is a defect in the Licensed Software such that it does not meet the Limited Warranty provided above, You must notify Company in writing within the 90-day warranty period. Company’s entire liability and Your exclusive remedy with regard to the Limited Warranty, shall be, at Company sole discretion, either repair or replacement of the Licensed Software or a refund of the amount paid by You for the Licensed Software. Any repaired or replacement Licensed Software shall be warranted for the remainder of the original warranty period.
11. To the maximum extent permitted by applicable law, except as provided above, COMPANY MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED WITH RESPECT TO THE LICENSED SOFTWARE, ITS QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
12. To the maximum extent permitted by applicable law, Company’s entire liability under this EULA shall be limited to the amount paid by You for the Licensed Software.
13. IN NO EVENT WILL COMPANY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, even if advised of the possibility of such damages.
14. Legal & Insurance Disclaimer. Licensed Software is not an insurance policy and are not a substitution or replacement for Errors and Omissions (E&O) insurance or other professional liability insurance. Company makes no claims of efficacy or ability of You to use the Company software products sold or promoted on its website, nor does it warrant any claims of others that may be presented in video, audio, blogs, forums, or any other portal available within or through this website. The products available at this web site are software tools for assisting in IT and security assessments and for use with compliance reporting. They are not intended to provide legal advice nor are they a replacement or substitute for legal counsel. The issues discovered through use of the tools and the recommendations expressed in the accompanying reports are the opinions of Company and may not reflect Your own best practices. You should review the reports and forms in consultation with your legal counsel and make any necessary changes to ensure that they suit your particular business needs.
In addition, Company provides sample managed service agreements, business associate agreements, legal templates and other self-help services as a convenience with Your subscription. We are not a law firm or substitute for an attorney. You should consult with your law firm and have these sample documents reviewed and evaluated before using.
15. Indemnification. Company represents that it has the right to grant to Licensee the license to use the Licensed Software as set forth in this EULA without violating any rights of any third party and that there is no actual or threatened suit by any third party based on an alleged violation of such right by Company. Company will defend, indemnify and hold Licensee harmless from any third party claim that the Licensed Software infringes any copyright, trademark or trade secret owned or controlled by the third party; provided, however, that (i) Company shall be notified promptly in writing by Licensee of any such claim; (ii) Company shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; (iii) Licensee shall cooperate with Company, at Company’s expense, in a reasonable way to facilitate the settlement or defense of such claim; (iv) such claim does not arise from Licensee’s modifications not authorized by Company; and (v) should the Licensed Software become, or in Company’s opinion likely to become, subject to such claim of infringement, then Licensee shall permit Company, at Company’s option and expense, either (a) to procure for Licensee the right to continue using the Licensed Software, or (b) to replace or modify the Licensed Software so that it becomes non-infringing and performs in a substantially similar manner to the original product, or (c) upon failure of (a) or (b), despite the reasonable efforts of Company, to terminate this EULA and return the license fee paid by Licensee for the Licensed Software.
16. Export Control. You may not export, ship, transmit, or re-export the Licensed Software in violation of any applicable law or regulation, including, without limitation, the Export Administration Regulations issued by the United States Department of Commerce, or any such similar law or regulation issued by such other governmental entity which may have jurisdiction over such export.
17. Termination. Your right to use the Licensed Software continues until this EULA is terminated. You may terminate this EULA at any time by destroying all of Your copies of the Licensed Software. This EULA will automatically terminate if You fail to comply with the material terms of this EULA. Upon termination, You agree to remove all Licensed Software from Your and Your Client’s computers, destroy all copies of the Licensed Software, and, upon request from Company, certify in writing Your compliance herewith.
Termination does not relieve Your responsibility to payment, in full, through the remainder of the subscription period.
18. Severability. If any of the terms, or portions thereof, of this EULA are invalid or unenforceable under any applicable statute or rule of law, the court shall reform the contract to include an enforceable term as close to the intent of the original term as possible; all other terms shall remain unchanged.
19. Whole Agreement. This EULA constitutes the entire agreement between You and Company relating to the subject matter hereof, and any additions to, or modifications of, this EULA shall be binding upon the parties only if the same shall be in writing and duly executed by You and by a duly authorized representative of Company. THE TERMS AND CONDITIONS OF ANY CORRESPONDING PURCHASE ORDER OR OTHER ORDER CONFIRMATION FORM RELATING TO THE LICENSED SOFTWARE ARE ONLY BINDING ON COMPANY IF SUCH TERMS AND CONDITIONS ARE AGREED TO IN WRITING IN ACCORDANCE WITH THE PRIOR SENTENCE AND IN A DOCUMENT OTHER THAN THE PURCHASE ORDER OR OTHER ORDER CONFIRMATION FORM.
20. Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this EULA shall not be deemed a waiver of any further or future right under this EULA.
21. Assignability. This EULA shall inure to the benefit of and is freely assignable to Company’s successors and assignees of rights in the Licensed Software.
22. Resellers. If Licensee acquired the Licensed Software through a Reseller, Licensee acknowledges that (i) payment and delivery terms for the Licensed Software must be established separately and independently between the Licensee and the Reseller; (ii) this EULA constitutes the entire agreement between the Licensee and Company regarding the license rights for the Licensed Software as described above and is controlling; (iii) the terms and conditions of any purchase order or any other agreement between the Licensee and the Reseller are not binding on Company; (iv) the Reseller is not authorized to alter, amend or modify the terms of this EULA or to otherwise grant any license or other rights relating in any way to the Licensed Software; and (v) Licensee’s nonpayment of any amount due to a Reseller or any other relevant third party relating to its licensed rights under this EULA shall constitute a basis for Company’s termination of this EULA. Licensee further acknowledges that Company makes no representation or warranty with regard to any services provided by any Reseller, or any actions or failures to act by any Reseller.