By signing an Order Form, Client agrees to be bound by the following Order Terms and Conditions (“Agreement”) in connection with those Products, Software Support and Subscriptions (each as defined below or, collectively referenced as “Reqfast, Inc.”) set forth on each signed Order Form.
1. Definitions
Software means the Reqfast software identified on an Order Form and in accordance with the software attachment hereto, if applicable.
1.2 Client means the person or party purchasing the Software.
1.2 Support means Software maintenance and support as set forth on an Order Form, and in accordance with the then-current Software support plan.
1.4 Subscription means the subscription(s) to the Software identified on an Order Form and further described in the subscription attachments, if applicable.
1.5 Description(s) means the then-current Reqfast, Inc. Software, Subscription and/or Reqfast, Inc. descriptions provided in the attachments hereto.
1.6 End User License Agreement (EULA) means the license accompanying the Software as applicable.
2. The terms and conditions of this Agreement apply to any and all Order Forms submitted by the Client to Reqfast, Inc. and supersede any and all terms contained on other purchase order(s). This Agreement contains these terms and conditions stated herein, to include any Order Form(s), Reqfast, Inc. Descriptions of services referenced on the Order Form, and any additional terms and conditions that may be referenced herein. Reqfast, Inc. hereby agrees to provide the Software in accordance with these terms and conditions and any Descriptions. If applicable, the Client agrees to provide to Reqfast, Inc. all reasonable data, information, materials and instructions specified in a Description and/or SOW or reasonably requested by Reqfast, Inc. in order to provide the Software. The Software is intended for internal business purposes of the Client. The Client agrees to not create any commercial data product, data service or derivative work based on or using Reqfast, Inc. products. All purchases/licenses of Reqfast, Inc. are non-refundable, non-returnable, non-cancelable and non-exchangeable. Reqfast, Inc., in its sole discretion, may allocate available inventory on a basis Reqfast, Inc. deems equitable.
3. Invoices are payable 45 days from issuance. Invoices will be issued as follows:
Software: Will be invoiced upon execution of the Order Form.
Support: Will be invoiced upon execution of the Order Form.
Services: Will be invoiced upon execution of the Order Form.
Late payments accrue 5% interest rate. All prices exclude excise, sales and use taxes, duties, customs fees and similar taxes and charges, all of which will be paid by the Client. All payments will be in U.S. dollars.
4. Subject to the terms and conditions of this Agreement, if Software is provided to the Client, Reqfast, Inc. grants to the Client the license as set forth in the End User License Agreement (“EULA”). The Client acknowledges it accepts the license and will comply with such EULA. In the event of conflict between this Order Terms and Conditions and the EULA, these Order Terms and Conditions shall take precedence and prevail.
5. Services: The Service term begins on the date of execution by both parties and runs for twelve (12) months.
6. Reqfast, Inc. warrants that the Reqfast, Inc. (a) Products will be free from defects in material and workmanship for one (1) year from the date of shipment; (b) Software media will be free from defects in material and workmanship for three (3) months from the date of shipment; (c) Software will substantially perform in accordance with Reqfast, Inc.’s standard specifications; and (d) Subscriptions will be provided in accordance with standard industry practices. This warranty does not apply to Non-warranted Code, defects or warranty claims resulting from (i) improper, unauthorized or inadequate use, maintenance or repair of the Software; (ii) hardware, Software, materials, devices, interfacing or supplies not provided by Reqfast, Inc.; (iii) unauthorized modifications of any of the Software; (iv) abuse, negligence, accident, loss or damage in transit; (v) improper site preparation; and/or (vi) such other exceptions or requirements contained in Reqfast, Inc.’ then-current Product Support plan. Reqfast, Inc. does not warrant that the operation of the Software will be uninterrupted or error free. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED ABOVE, REQFAST, INC. AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED. REQFAST, INC. AND ITS SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, TITLE, AND NON-INFRINGEMENT. REQFAST, INC. AND ITS SUPPLIER’S SOLE OBLIGATION AND THE CLIENT’S SOLE REMEDY UNDER THIS WARRANTY IS FOR REQFAST, INC. TO REPAIR OR REPLACE DEFECTIVE WARRANTED PARTS OR MEDIA, AT REQFAST, INC.’ SOLE OPTION, PROVIDED REQFAST, INC. RECEIVED PROPER NOTICE OF ANY CLAIMED DEFECT DURING THE WARRANTY PERIOD. Reqfast, Inc. may use new or remanufactured parts which are equivalent to new.
7. EXCEPT FOR EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS STATED HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOST PROFITS, LOST DATA, OR COST OF SUBSTITUTE GOODS OR SERVICES) RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND WHETHER SUCH DAMAGES ARE BASED IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, AND WHETHER OR NOT REQFAST, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS STATED HEREIN, IN NO EVENT WILL REQFAST, INC.’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED AN AMOUNT IN EXCESS OF THE FEES PAID BY CLIENT TO REQFAST, INC. FOR THE PRODUCTS, SOFTWARE, AND/OR SUBSCRIPTIONS FROM WHICH THE CLAIM ARISES, DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE IN WHICH THE CLIENT GIVES WRITTEN NOTICE TO REQFAST, INC. OF THE CLIENT’S CLAIM. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. Confidentiality
8.1 Confidential Information. During the term of this Agreement, each party will regard any information provided to it by the other party and regardless whether it is designated in writing, or marked, as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information also includes information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement. Each party accepts responsibility for the actions of its agents or employees and will protect the other party’s Confidential Information in the same manner as it protects its own valuable Confidential Information, but in no event will less than reasonable care be used. The parties expressly agree that the terms and pricing of this Agreement are Confidential Information. A receiving party will promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and agrees to cooperate with any reasonable request of the disclosing party in enforcing its rights.
8.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
8.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both parties acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the disclosing party may be entitled hereunder, at law or equity, the disclosing party will be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
9. This Agreement may be terminated by either party at any time for any material breach hereof by the other party.
10. The Software and/or Subscriptions (individually or collectively) provided under this Agreement are subject to the customs and export control laws and regulations of the United States, and may also be subject to the customs or export control laws and regulations of the country(ies) in which the Software is purchased, provided, incorporated, transferred, used or received. Client agrees to substantially abide by those laws and regulations, including any requirements to obtain export licenses or other government authorizations. The Software may not be exported, re-exported, sold, or otherwise transferred to restricted parties (including those on the U.S. Department of Commerce, Bureau of Industry and Security “Entity List,” the U. S. Department of the Treasury, Office of Foreign Assets Control “Specially Designated Nationals List,” and other U.S. government lists of denied parties) or to countries subject to a U.S. export embargo (currently Cuba, Iran, North Korea, Sudan, and Syria). In addition, the Software may not be exported, re-exported, sold, or otherwise transferred to, or utilized by, persons engaged in any activities related to weapons of mass destruction, including any activities related to the design, development, production or use of (a) nuclear weapons, materials, or facilities, (b) missiles or the support of missile projects, or (c) chemical or biological weapons.
The Client will not export, or import, either directly or indirectly, any Software without first obtaining, at its expense, all necessary approval from the appropriate agencies of the applicable government(s) and all foreign approvals required by government agencies in the Client’s country or territory (“Foreign Approvals”). Reqfast, Inc. is not liable for delays or failure to deliver Software resulting from the Client’s failure to obtain such authorizations, licenses, or permits, or to provide certification to Reqfast, Inc. that any necessary license has been obtained.
11. All purchase orders, notices and demands to Reqfast, Inc. should be addressed to Reqfast, Inc., 11811 N. Tatum Blvd. Ste 3031, Phoenix, AZ, USA. This Agreement is governed in all respects by the laws of Delaware, and the parties hereto agree that proper venue of any action with respect hereto shall be the applicable courts in Delaware. This Agreement may be executed in counterparts; signed copies of this Agreement sent via facsimile or email will have the same legal effect as original documents. Each individual who signs on behalf of his/her respective entity represents and warrants that he/she is duly and expressly authorized to sign this Agreement. These terms and conditions represent the entire agreement on this subject matter excluding all prior agreements, representations, statements, negotiations, and understandings. This Agreement may be modified only by a written amendment signed by the parties.
12. Neither party may assign this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. Notwithstanding, either party may assign this Agreement without the other’s consent: (a) to any present or future affiliated entity, or (b) in the case of a merger, acquisition, divestiture, consolidation or corporate reorganization, or (c) in connection with the sale of all or substantially all of the business assets to which this Agreement relates. Any assignment or attempted assignment contrary to this Section 12 will be a material breach of this Agreement and null and void. This Agreement will be binding upon the successors, legal representatives and permitted assigns of the Parties. For purposes of this Section 12, any transfer of control, sale of assets, merger or other combination by operation of law constitutes an assignment.
13. Reqfast, Inc. will indemnify and hold the Client harmless or settle any claim against the Client if the Software and Subscriptions delivered hereunder infringe any U.S. trade secret, copyright or registered trademark subject to the provisions in this Section 13. If such a claim appears likely, Reqfast, Inc. may modify the applicable Software and Services, procure any necessary license, replace it, or terminate this Agreement and refund to the Client the amounts paid to Reqfast, Inc. by the Client, for such product, the use of which is impaired or enjoined, limited to actual money paid to Reqfast, Inc. by the Client for such product, depreciated over the period of the license agreement. Reqfast, Inc.’ obligation to indemnify, hold harmless and/or settle a claim pursuant to this Section 13 is contingent on the Client providing Reqfast, Inc. with (a) prompt written notice of any such claim; (b) sole control over the defense and settlement of any such claim; (c) reasonable cooperation for the defense of any such claim, at Reqfast, Inc.’s expense; and (d) assurance that it will not enter into any settlement or compromise of any such claim without Reqfast, Inc.’s prior written approval. Reqfast, Inc.’s obligations under this Section 13 will not apply to any claim resulting from or based on (i) modification of Software or deliverable by the Client or any third party without Reqfast, Inc.’s written permission; (ii) use of the Software in combination with hardware, software or products not supplied or approved by Reqfast, Inc.; (iii) failure to use the most recent version or release of the Software; (iv) Reqfast, Inc.’s compliance with Client’s explicit or written designs, specifications or instructions; (v) Reqfast, Inc.’s use of technical information or technology provided by the Client; or (vi) use not authorized by or in contravention of Reqfast, Inc.’s specifications and/or recommendations.
Each party will indemnify, defend, and hold harmless the other party (including its Affiliates) and their respective officers, directors, shareholders, employees and agents (each, an “Indemnitee”) from and against any and all judgments, settlements, costs, damages, liabilities and expenses (including reasonable legal fees) (collectively, “Losses”), arising from or in connection with any third party investigation, demand, claim, action, suit or proceeding (“Claim”) instituted against an Indemnitee based upon or to the extent resulting from any alleged or actual (i) breach by a party of its confidentiality obligations; (ii) bodily injury, including death to persons, or damage to real or tangible personal property, including theft, to the extent resulting from the gross negligence or willful misconduct of a party, its employees or agents; or (iii) act or omission that constitutes the gross negligence or willful misconduct of the party, its employees or agents. THESE TERMS STATE EACH PARTY’S ENTIRE LIABILITY FOR ANY AND ALL CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT AND/OR LOSSES.
14. Reqfast, Inc., agrees to notify with at least 6 month prior written notice to Client (otherwise if not possible- without undue delay) the following matters/events: (i) end of life of the Software or Subscription, (ii) any possible risk of insolvency or dissolution of Reqfast, Inc., end of runway of Reqfast, Inc., so that Client can search for alternative solutions or negotiate termination terms.
15. Except for the obligation to make payments, non-performance of either party will be excused to the extent that performance is rendered impossible by any act of God, strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
16. Relationship of the Parties. Reqfast, Inc. and the Client are independent contractors, and nothing in this Agreement will be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party will make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.
17. Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the party set forth on the applicable Order Form. Either party may change its address by giving written notice of such change to the other party.
18. Waiver and Severability. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.