"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in the United States of America;
"Business Hours" means the hours of 09:00 to 17:00 (EST) on a Business Day;
"Charges" means the following amounts:
"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
"Customer Confidential Information" means:
any information disclosed by or on behalf of the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
was marked or described as "confidential"; or
should have been reasonably understood by the Provider to be confidential; and
the Customer Data;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
"Customer Indemnity Event" has the meaning given to it in Clause 17.3;
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding data with respect to which the Provider is a data controller;
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date of execution of this Agreement;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means RapidPlan Online, as specified in the Hosted Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification.
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Part 2 of Schedule 1 (Hosted Services particulars) and in the Documentation;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Minimum Term" means, in respect of this Agreement, the period of 12 months beginning on the Effective Date;
"Mobile App" means the mobile application known as RapidPlan Online that is made available by the Provider through www.rapidplan.com;
"Personal Data" has the meaning given to it in the General Data Protection Regulation (Regulation (EU) 2016/679);
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider Indemnity Event" has the meaning given to it in Clause 17.1;
"Schedule" means any schedule attached to the main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Set Up Services" means the configuration, implementation and integration of the Hosted Services in accordance with Part 1 of Schedule 1 (Hosted Services particulars);
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Update" means a hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a major version upgrade of any Platform software.
the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;
the Hosted Services may only be used by the named users identified in Schedule 1 (Hosted Services particulars), providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein; and
the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in Schedule 1 (Hosted Services particulars), providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein.
the Customer must not sub-license its right to access and use the Hosted Services;
the Customer must not permit any unauthorised person to access or use the Hosted Services;
the Customer must not use the Hosted Services to provide services to third parties;
the Customer must not republish or redistribute any content or material from the Hosted Services; and
the Customer must not make any alteration to the Platform, except as permitted by the Documentation.
co-operation, support and advice;
information and documentation; and
governmental, legal and regulatory licences, consents and permits,
Suspend the Customer's subscription; or
Charge the Customer interest on the overdue amount at the rate of 8% per annum above the Federal Reserve base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
keep the Customer Confidential Information strictly confidential;
not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;
use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
act in good faith at all times in relation to the Customer Confidential Information; and
not use any of the Customer Confidential Information for any purpose other than the permitted purpose.
is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
is or becomes publicly known through no act or default of the Provider; or
is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
the Hosted Services will be free from Hosted Services Defects;
the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services;
the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
the Platform will incorporate security features reflecting the requirements of good industry practice.
modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider, without prejudice to the Provider's obligations under Clause 17.1.
upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer, without prejudice to the Customer's obligations under Clause 17.3.
limit or exclude any liability for death or personal injury resulting from negligence;
limit or exclude any liability for fraud or fraudulent misrepresentation;
limit any liabilities in any way that is not permitted under applicable law; or
exclude any liabilities that may not be excluded under applicable law.
are subject to Clause 18.1; and
govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
road works, and that neither the software nor any traffic control plans included or packaged with the software offers any suggestion, advice, example or other information concerning compliance with such laws, rules or regulations. Any traffic control plans included in the software is included for software capability illustrative purposes only and the Provider does not warrant that it is suitable for any application or use on roadways in the United States or elsewhere. The Customer further acknowledges that it is understood that applicable laws, rules and regulations may require people engaging in traffic management practices to hold certain accreditations relating to traffic management or traffic control.
promptly notify the other; and
inform the other of the period for which it is estimated that such failure or delay will continue.
the other party commits any breach of this Agreement, and the breach is not remediable;
the other party commits a breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).
the other party:
ceases to conduct all (or substantially all) of its business;
is or becomes unable to pay its debts as they fall due;
is or becomes insolvent or is declared insolvent; or
convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
if that other party is an individual:
that other party dies;
as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
that other party is the subject of a bankruptcy petition or order.
any amount due to be paid by the Customer to the Provider under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
the Provider has given to the Customer at least 30 days' written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 20.4.
the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement, without prejudice to the parties' other legal rights.
delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
PO Box 1345 Guilderland, NY 12084.
that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
any subordinate legislation made under that statute or statutory provision.
The parties have indicated their acceptance of this Agreement by executing it below.
Executed by Invarion Inc.
the use of www.rapidplan.com, any successor website, and the services available on that website or any successor website (the "Services"); and
the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
in any way that is unlawful, illegal, fraudulent or harmful; or
in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
be libellous or maliciously false;
be obscene or indecent;
infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
infringe any right of confidence, right of privacy or right under data protection legislation;
constitute negligent advice or contain any negligent statement;
constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
be in contempt of any court, or in breach of any court order;
constitute a breach of racial or religious hatred or discrimination legislation;
constitute a breach of official secrets legislation; or
constitute a breach of any contractual obligation owed to any person.
a Force Majeure Event;
a fault or failure of the internet or any public telecommunications network;
a fault or failure of the Provider's hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Provider and that company;
a fault or failure of the Customer's computer systems or networks;
any breach by the Customer of this Agreement; or
scheduled maintenance carried out in accordance with this Agreement.
third party security Updates shall be applied to the Platform promptly following release by the relevant third party, providing that the Provider may acting reasonably decide not to apply any particular third party security Update;
the Provider's security Updates shall be applied to the Platform promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update; and
other Updates shall be applied to the Platform in accordance with any timetable notified by the Provider to the Customer or agreed by the parties from time to time.
critical: the Hosted Services are inoperable or a core function of the Hosted Services is unavailable;
serious: a core function of the Hosted Services is significantly impaired;
moderate: a core function of the Hosted Services is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Hosted Services is significantly impaired; and
minor: any impairment of the Hosted Services not falling into the above categories; and any cosmetic issue affecting the Hosted Services.
critical: 1 Business Hour;
serious: 4 Business Hours;
moderate: 1 Business Day; and
minor: 5 Business Days.
critical: 2 Business Hours;
serious: 8 Business Hours;
moderate: 4 Business Days; and
minor: 10 Business Days.
the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and
the Provider may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.
the improper use of the Hosted Services by the Customer; or
any alteration to the Hosted Services made without the prior consent of the Provider.