Terms of Service
1. Scope of Agreement.
This Agreement permits Customer to receive and use Quindar’s services and platforms that it makes available for a fee and sets forth the terms and conditions under which they will be delivered and paid for. This Agreement will govern Customer’s services on the Effective Date as well as any future orders placed by Customer that reference this Agreement.
2. Definitions.
Quindar encrypts data at rest and in transit for all of our customers. We use tools like Amazon Web Service’s Key Management System (KMS) to manage encryption keys using hardware security modules for maximum security in line with industry best practices.
2.1 Affiliates:
all entities that (directly or indirectly) control, are controlled by or are under common control with that party, where “control” means ownership of or the right to control greater than 50% of the voting interests of such entity.
2.2 Authorized Users:
those employees, agents and Contractors of the Customer who are authorized by the Customer to access and use the Services and Documentation, as further described in Section 3, below, and the Order Form.
2.3 Beta Features:
features and functionality of the Services that are not yet commercially available which Customer may view, access or interact with during the term of Customer’s Subscription.
2.4 Confidential Information:
Any and all code, inventions, know-how, business, technical and financial or other information that one party receives from the other, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by Quindar (or its agents), performance information relating to the Service, and the terms of this Agreement will be deemed Confidential Information of Quindar without any marking or further designation.
2.5 Content:
all entities that (directly or indirectly) control, are controlled by or are under common control with that party, where “control” means ownership of or the right to control greater than 50% of the voting interests of such entity.
2.6 Contractor:
any individual providing services to Customer that is an independent contractor or temporary employee, and to which Customer has provided a valid password or other means of accessing and using the Service.
2.7 Customer Data:
the data, content or information, including Personal Data as defined below, inputted by the Customer, Authorized Users, or Quindar on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
2.8 Customer Materials:
Customer technical data, computer programs, files, documentation, and/or other materials that are necessary for the performance of Professional Services by Quindar.
2.9 Deliverables:
means deliverables identified in a Statement of Work or otherwise provided to Customer as part of Professional Services performed by Quindar.
2.10 Documentation:
any document(s) made available to the Customer by Quindar from time to time that set(s) out a description of the Services, the user instructions for the Services, a description of the SDK and the proper use of the SDK.
2.11 Feedback:
ideas, feedback or suggestions of Customer related in any way to the Services, including the Beta Features.
2.12 Non-Production Environment(s
online environment(s) dedicated to use in developing and testing the Services. Non-Production Environments do not include the online environment Quindar uses to provide Services to Customer upon completion of configuration of the Services.
2.13 Order Form:
any order form for Services executed by Customer and Quindar. Customer’s initial order form is on the first page of this Agreement.
2.14 Personal Data:
any information relating to an identified or identifiable natural person.
2.15 Pilot Subscription:
Services provided for evaluation purposes. Services provided during Pilot Subscriptions may include reduced capability, a limited Term, or a discounted purchase price as indicated on an Order Form.
2.16 Professional Services:
customization, implementation and other services provided pursuant to a Statement of Work.
2.17 SDK:
means the software development kit, together with all fixes, patches, updates and upgrades thereto, licensed to Customer under the terms of this Agreement for use with the Service. The SDK consists of software development tools and/or software development kit file libraries.
2.18 Service(s):
means the features, functionality and services that are ordered by Customer on an Order Form and made available online to Customer by Quindar under this Agreement, excluding Professional Services. Services are not Deliverables and will not become a Deliverable by virtue of reference to Services in a Statement of Work.
2.19 Service Level Agreement:
means the service availability and technical support services described in Exhibit 1 and/or that may be attached as an appendix to an Order Form.
2.20 Statement of Work:
means any statement of work, executed by both parties, that either references this Agreement or is provided to Customer as part of Professional Services that may be attached as an appendix to an Order Form
2.21 Subscription:
means Customer’s ability to access and use the Service, as described in Section 3, for a predetermined period of time.
2.22 Subscription Fees:
the annual fees payable by the Customer to Quindar for a Subscription to the Services, as set out in an executed Order Form.
2.23 Term, Initial Term and Renewal Term:
each have the definition given to them in Section 10.1.
2.24 Third Party:
any entity other than (i) Quindar, (ii) its Affiliates, (iii) Customer, or (iv) a Contractor.
3. Subscriptions.
3.1 Subscriptions.
Subject to all of the terms and conditions of this Agreement, including payment of applicable Subscription Fees, (i) Quindar shall provide and Customer may access and use the Services through its Authorized Users, solely for the Customer's internal business operations, and (ii) Quindar hereby grants Customer and Customer hereby accepts a non-transferable, non-sublicensable, non-exclusive, revocable license to use the Documentation and Content, solely for Customer’s internal business operations; each for the term of the Subscription set out in the applicable Order Form, but each only in accordance with this Agreement (including its exhibits), the Documentation, and any additional limitations set forth on the applicable Order Form.
3.2 Use by Affiliates and Contractors
Subject to the terms and conditions of this Agreement, Contractors may use the Services, and applicable Documentation under Customer’s Subscriptions, provided that (a) such use is only for Customer’s benefit and internal use, (b) Customer agrees to remain responsible for each Contractor’s compliance with the terms and conditions of this Agreement and (c) upon request Customer will identify each such Contractor. Use of the Service by Customer Affiliates, Contractors and Customer in the aggregate must be within the user restrictions in the applicable Order Form.
3.3 Authorized Users.
Customer covenants that:
3.3.1 The maximum number of Authorized Users that Customer authorizes to access and use the Services and the Documentation will not exceed the number of Authorized Users permitted to access and use the Services as determined by the Order Form(s) and associated exhibits to this Agreement;
3.3.2 The maximum number of Authorized Users that Customer authorizes to access and use the Services and the Documentation will not exceed the number of Authorized Users permitted to access and use the Services as determined by the Order Form(s) and associated exhibits to this Agreement;
3.3.3 Customer shall be fully responsible for any use of the Service by an Authorized User, and all such use will comply with this Agreement.
3.4 Service Levels.
Quindar will make the Service available to Customer in accordance with the time frames described in the Service Level Agreement. Customer understands and acknowledges that Quindar may outsource or use Affiliates to provide some operations and functions associated with the Service. Notwithstanding any such outsourcing, Quindar shall be responsible for operating, maintaining, and providing access to the Service in accordance with the provisions of this Agreement, and any applicable Service Level Agreement. Customer’s sole and exclusive remedy, and Quindar’s sole obligation with respect to any unavailability of the Service, is described in the Service Level Agreement.
3.5 Non-Production Environments.
Certain Quindar Services may provide Customer the opportunity to access Non-Production Environments during the Subscription term. When such circumstances arise, Quindar may, but is under no obligation to, provide Customer with continued access to a single Non-Production Environment at no additional cost upon completion of any implementation services or other Professional Services (whether or not provided by Quindar). Additional Non-Production Environments may be available for a fee. Customer’s use of a Non-Production Environment is subject to the terms, conditions and restrictions of this Agreement applicable to its Subscriptions, except that (i) Customer may not access or use Non-Production Environments for its day-to-day business usage of the Service; (ii) Quindar provides no warranty for and specifically disclaims all warranties related to Non-Production Environments; and (iii) Quindar will have no service level obligations with respect to the Non-Production Environments.
3.6 Pilot Subscription:
Quindar may, in its sole discretion, provide Customer with a Pilot Subscription for the purpose of evaluating the Service. Customer’s use of the Pilot Subscription is subject to the terms and conditions of this Agreement and any additional terms described in an Order Form. Services provided in a Pilot Subscription are provided AS-IS, without warranty whatsoever. Quindar will have no service level obligations with respect to the Pilot Subscription unless otherwise indicated in an Order Form.
3.7 Beta Features.
Quindar may, in its sole discretion, provide Customer with access to Beta Features during a Subscription term. Customer’s use of the Beta Features is subject to the terms and conditions of this Agreement and any additional terms for the Beta Features described in an Order Form. Beta Features are provided AS-IS, without warranty whatsoever. Quindar will have no service level obligations with respect to the Beta Features.
3.8 Suspension of Access to the Service.
Quindar reserves the right, to temporarily suspend or terminate Customer’s or an Authorized User’s access to the Service at any time for the actual or suspected breach of this Agreement by Customer or an Authorized User, without incurring liability of any kind.
3.9 Requirements for Access to the Service.
Customer will ensure that access and use of the Service by its Authorized Users follows all requirements of the International Traffic in Arms Regulations 22 C.F.R. §120 et. seq.
4. SDK License Terms.
4.1 SDK License.
Subject to the terms and conditions set forth in this Agreement, and Customer’s maintenance of a Subscription, Quindar hereby grants Customer, and Customer hereby accepts, a non-transferable, non-sublicensable, non-exclusive, revocable license to download, install, run, and use the SDK: (i) solely for Customer’s internal business operations in the development of an application that interoperates with the Services; (ii) in accordance with the SDK Documentation; (iii) in accordance with this Agreement; and (iv) in accordance with any additional limitations (such as user limitations) set forth on the applicable Order Form. In addition, subject to all of the terms and conditions of this Agreement, and the maintenance of a valid subscription to Quindar’s Services, Quindar hereby grants you a non-transferable, non-sublicensable, non-exclusive, revocable license to incorporate the software development kit file libraries into the application you develop through use of the SDK, solely for your internal business purposes. Customer may use the SDK Documentation in connection with the rights granted in this Section 4.1, provided, however, that Customer may not distribute, modify, or make derivative works of the SDK Documentation or any portion of the SDK Documentation. Customer may make a reasonable number of copies of the SDK for back-up and archival purposes.
4.2 Open Source Components.
The SDK contains software code and/or libraries that are made available to the public at no charge, and which are subject to the terms of a separate license agreement (“Open Source Components”). The Open Source Components may be licensed under the terms of the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative. Customer will only use the Open Source Components in the manner permitted by the applicable license agreement.
4.3 License Keys.
The SDK may require license keys or other security authentication protocols to activate and use. If applicable, Quindar will provide Customer with a license key or other authentication information following delivery (or download) of the SDK.
4.4 Technical Support.
At no additional charge, during the term of Customer’s Subscription, Quindar will provide Customer with support services for the SDK, which may include answering Customer’s questions about the proper use of the SDK, and/or providing fixes, patches, updates or upgrades to the SDK.
5. Restrictions.
5.1 Customer shall not, and shall not allow any Authorized User or Third Party to:
5.5.1 reverse engineer the Services, SDK, or any component of them, or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of software used in the Service or SDK by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Quindar);
5.5.2 distribute, sell, sublicense, rent or otherwise transfer the Service or SDK;
5.5.3 recreate, lease or use the Services or SDK for time sharing, hosting, service provider or like purposes;
5.5.4 in any way use the Services, SDK and/or Documentation to provide Services to a Third Party;
5.5.5 post or introduce any data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine or mechanism, through or to the Services or SDK, that causes or is designed to cause either the Service or the SDK to cease functioning, or to disrupt, disable, harm or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of, or to allow Customer or any other person to access, or damage or corrupt data, storage media, programs, equipment or communications or otherwise interfere with operations of or on, the Services, SDK, or any software, firmware, hardware, computer system or network of Quindar or any Third Party;
5.5.6 remove any product identification, proprietary, copyright or other notices contained in the Services or SDK;
5.5.7 modify any part of the Services or SDK, create a derivative work of any part of the Services or SDK, or incorporate the Services or SDK into or with other software, except to the extent expressly authorized in writing by Quindar; or
5.5.8 publicly disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Services from any source.
5.2 Customer shall prevent any unauthorized access to, or use of, the Services, SDK and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Quindar.
6. Ownership.
6.1 Ownership.
otwithstanding anything to the contrary contained in this Agreement, Quindar and its suppliers have and will retain all rights, title and interest in and to the Service, SDK and Documentation (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights), all Feedback, and all copies, modifications and derivative works of all of the foregoing, (including any such materials to the extent incorporating any Feedback). Customer acknowledges that it is obtaining only a limited right to use the Service and Documentation, and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement or elsewhere, no ownership rights are being conveyed to Customer under this Agreement or otherwise. Customer acknowledges that Quindar is free to exploit, use, license and distribute, any Feedback provided to Quindar as it sees fit, without obligation of compensation or attribution.;
6.2 Customer Data and Aggregate Data.
As between Quindar and Customer, Customer owns or has license to all rights, title and interest in and to all of the Customer Data and has sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. To the extent Customer has any ownership or other interests in the Customer Data, Customer hereby grants to Quindar and its Affiliates a non-exclusive, perpetual, worldwide, paid-up, and irrevocable license to use, process, manipulate and/or modify, copy, perform, compile and create derivative works from the Customer Data, including using the Customer Data (i) to provide the Service to Customer (ii) for Quindar’s internal business purpose, and (iii) for the analysis and improvement of the Service and other products or service capabilities, while at all times treating Customer Data as Confidential Information. All other data and information that is collected, transmitted, recorded, or accessed by or through the Service, and all data, reports, derivative works, compilations, modifications and other materials created from or with use of such data will be, in each case, the sole and exclusive property of Quindar; and Customer, on behalf of itself and its Authorized Users, hereby assigns all of its and their right, title and interest, if any, in and to such items to Quindar without any fees due and without rights to future royalties.
6.3 Customer Marks.
Customer grants Quindar a non-exclusive, non-transferable, fully revocable license to use the trademarks, trade names, service marks, slogans, designs, labels, logos and other source-identifying symbols provided by Customer to Quindar (the “Customer Marks”) (i) during the Term (ii) for use in providing Services to the Customer, (iii) only in accordance with Customer’s trademark usage guidelines provided to Quindar, (iv) only in a manner which preserves the rights of Customer, and (v) only in materials approved in advance by Customer. All rights in and to and ownership of all Customer Marks are vested in Customer absolutely. All uses of the Customer Marks will inure to the benefit of Customer. Quindar has no right, title or interest in the Customer Marks aside from this license. Upon termination or expiration of this Agreement, or notice from Customer, the license to the Customer Marks will automatically expire and Quindar will immediately cease using the Customer Marks.
7. Privacy and Security.
7.1 Processing of Personal Data.
Customer acknowledges that some data processed by the Service may be Personal Data, and hereby authorizes Quindar to process and store such Personal Data on Customer’s behalf in connection with the Service. Customer Data is stored in the United States, though Quindar may access such data from and/or process such data outside the United States when required to provide support and maintenance
7.1.1 Quindar will process Personal Data that Customer or an Authorized User transmits to Quindar for processing on Customer’s behalf in connection with the Service as necessary perform Quindar’s contractual obligations under this Agreement.
7.1.2 Customer is responsible for using the Service, and sending Personal Data to Quindar in compliance with all applicable data privacy laws. Without limiting the generality of the foregoing, Customer must ensure that data subjects receive notices or grant consent as legally required. Customer agrees to indemnify, defend and hold Quindar harmless from and against all claims, demands, actions or causes of action arising out of any breach of the foregoing obligations.
7.1.3 Each party shall use contact details and other business relationship information regarding the other party as a data controller, in compliance with all applicable laws and for legitimate business purposes. Customer shall use such data in accordance with Customer’s general privacy statement, unless the parties agree on specific terms in writing.
7.1.4 Quindar will maintain appropriate technical and organizational measures for protection of the security, confidentiality and integrity of Personal Data, including those described in this Agreement.
8. Implementation and Other Professional Services.
8.1 Professional Services Generally.
Any Professional Services to be provided under this Agreement will be subject to separate Statements of Work. Quindar agrees to use commercially reasonable efforts to render the Professional Services by the delivery dates specified in the applicable Statement of Work, if any. Any Statement of Work will become part of this Agreement upon execution by both parties. Customer agrees to provide Quindar with access to Customer Materials, resources, personnel, equipment or facilities to the extent such access is necessary for the performance of Professional Services. Customer will be responsible for, and assumes the risk of any problems resulting from the content, accuracy, completeness, competence or consistency of Customer Materials or its personnel. To the extent that Customer does not provide the foregoing access required for Quindar to perform the Professional Services or deliver the Deliverables, Quindar will be excused from performance until such items/access are provided.
8.2 Initial Scope of Work for Implementation and Related Services.
If applicable, any initial implementation and related Professional Services will be provided pursuant to this Agreement in a Statement of Work.
8.3 Changes to Scope of Professional Services.
If Customer desires to change a Statement of Work, Customer will submit a written request to Quindar detailing the proposed changes. If Quindar is willing to accommodate such changes, Quindar shall prepare an amendment to the Statement of Work detailing the changes, any fee adjustments required as a result of such changes, any adjustments to the delivery schedule required as a result of such changes, and any other necessary adjustments. If the Statement of Work amendment is agreeable to Customer, both parties will execute the amendment. Unless and until Customer and Quindar agree to such an adjustment to the Statement of Work, it will remain unchanged.
8.4 Acceptance of Professional Services and Deliverables.
Quindar will be deemed to have delivered any Professional Services or Deliverables identified in a Statement of Work on the date on which Quindar delivers service or Deliverables that conform in all material respects to the specifications agreed to in writing between the parties (the “Specifications”) and any applicable acceptance conditions expressly set forth in a Statement of Work (the “Acceptance Conditions”). Customer shall be responsible for promptly testing and evaluating such Professional Services or Deliverables as described in the Acceptance Conditions. If Customer confirms that the Professional Services or Deliverables conform(s) to the applicable Specifications and Acceptance Conditions, Customer will deliver to Quindar written notice of its acceptance. If Customer believes in good faith that that the Professional Service(s) or Deliverable(s) do not meet the Specifications in all material respects, Customer shall provide Quindar with a written cure notice setting forth in detail the nature of the failure or non-conformity (a “Cure Notice”). If the parties are unable to reach agreement within fifteen (15) days of provision of a Cure Notice whether the Deliverable meets the Specifications (or alternatively, to a schedule for completion of agreed upon cure of any non-conformity), the parties shall promptly escalate the issue to escalation parties set forth in the Statement of Work or, if no such persons are identified, to executives with the authority to resolve the issues on behalf of each party. Subject to the foregoing, Quindar will use commercially reasonable efforts to correct, at its own expense, any errors or defects that cause the Professional Service(s) or Deliverable(s) to fail to conform to the Specifications, and Customer will cooperate with Quindar in good faith with such efforts. Notwithstanding the foregoing, acceptance of any delivered Professional Services or Deliverable(s) (or element thereof) will be deemed to have occurred if Customer does not provide a notice of acceptance or written cure notice within fourteen (14) days of Quindar providing Customer with written notice that the service or Deliverable is complete.
8.5 Customer Materials.
Customer hereby grants Quindar a limited right to use any Customer Materials solely for the purpose of performing the Professional Services for Customer. Customer owns and will retain ownership (including all intellectual property rights) in the Customer Materials. Customer Materials that are also Customer Data will be governed by Section 7.
8.6 Deliverables.
To the extent a Deliverable includes software or other copyrightable material, Quindar hereby grants Customer a worldwide, royalty-free, non-exclusive, non- transferable license to use the Deliverable, but only for internal purposes for the enhancement of its usage of the Service during the Term, and otherwise in accordance with the description of Customer’s use and any restrictions set forth in this Agreement and /or the applicable Statement of Work. Quindar owns and will retain ownership (including all intellectual property rights) in and to all Deliverables (excluding any Customer Materials) and any modifications, improvements and derivative works thereof (including any such materials to the extent incorporating any Feedback). Even if listed or identified in a Statement of Work, neither the Service nor any component thereof will be considered a Deliverable.
9. Fees and Payment.
9.1 Subscription Fees.
The fees for the Subscriptions provided under this Agreement are set out on the applicable Order Form. Subscription Fees are due annually and in advance, beginning on the Effective Date and continuing on each anniversary of the Effective Date, unless otherwise specified in the applicable Order Form. Subscription Fees for any Renewal Term (defined below), renewed Subscriptions, or additional Subscriptions to Quindar Services, will be based on the then list price for Subscriptions to the Services provided, unless the parties agree in writing to different pricing.
9.2 Professional Service Fees.
For Professional Services, including implementation and related professional services, Customer will pay Quindar the amounts and at the times set forth on the applicable Statement of Work. If not specified, Customer will pay Quindar for Professional Services monthly and at Quindar’s then-current customary rates. Customer agrees to reimburse Quindar for travel, lodging and meal expenses incurred in the course of performing the Professional Services at any location other than Quindar’s site, and any other expenses specified in the Statement of Work. Quindar will invoice Customer for expenses incurred and at Customer’s request and expense, Quindar will provide copies of receipts for individual charges.
9.3 Payment.
All payments are non-refundable (except as expressly set forth in this Agreement) and will be made in U.S. dollars unless otherwise indicated on an Order Form. Customer will pay the undisputed amounts of any invoice within thirty (30) days of the invoice date unless otherwise specified in the applicable Order Form. Customer must notify Quindar of any dispute over an invoice amount in writing within 20 days of the invoice date or the dispute will be waived. Customer’s notice must inform Quindar of the specific amount of and basis for the dispute. Customer will pay undisputed invoice amounts without set-offs of any kind, and the parties agree to work in good faith to resolve any dispute within ten (10) business days from the date Quindar receives notice of the dispute. Customer shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Quindar). Any late payments will be subject to a service charge equal to one and one half percent (1.5%) per month of the amount due or the maximum amount allowed by law, whichever is less. Quindar will be entitled to suspend any Service or the performance of any Professional Services at any time following Customer’s failure to make a payment when due.
10. Term of Agreement.
10.1 Term.
This Agreement will have an initial term commencing upon the Effective Date and extending for one (1) year (the “Initial Term”). At the end of the Initial Term, the Agreement will automatically renew for consecutive renewal terms equal to the Initial Term (each a “Renewal Term”). Either party may elect not to renew the Agreement at the end of the Initial Term or any Renewal Term by giving written notice to the other at least ninety (90) days prior to the end of the then-current Term. The Initial Term and each Renewal Term are referred to as the “Term.” If the performance period of an exhibit or the term of a Subscription set out in an Order Form extends beyond the Term expiration date, this Agreement will be extended until such performance period or Subscription is completed.
10.2
Each Subscription will commence on the Subscription Term Start date and continue until the Subscription Term End date, each as identified on the first page of this Agreement and/or any subsequent Order Form. The Subscription will continue on a month to month basis after the Subscription Term End, until either party provides 30 days’ prior notice of termination. Termination will be effective at the end of the month following the month in which the termination notice is provided. (E.g. termination notice received on January 15st will be effective as of March 31st). Fees are not subject to pro-ration.
10.3 Termination.
Either party may terminate this Agreement (including all related Subscriptions, Order Forms and exhibits), if the other party: (a) fails to cure any material breach of this Agreement within forty-five (45) days after written notice of such breach: provided this right of termination will apply only to the Order Form or exhibit affected if the material breach does not affect the entire Agreement; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Notwithstanding the foregoing, Quindar may terminate this Agreement by providing ten (10) days’ prior written notice if Customer fails to make a payment when due. If a Customer breach is such that it cannot be cured, then Quindar will have the right to terminate this Agreement, a Subscription or Order Form immediately. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
10.4 Effect of Termination.
10.4.1 Termination of this Agreement, any Subscription or any Order Form pursuant to Section 10.3 by Quindar does not affect any sums due to Quindar and all fees and other charges will be payable immediately, including fees or charges that are due or would have become due for the remainder of the Term of the Subscription had there been no termination. If Customer terminates this Agreement, any Subscription or any Order Form pursuant to Section 10.3 Quindar shall refund any prepaid, unearned fees for Services.
10.4.2 Upon any termination of this Agreement or of all Subscriptions, Customer’s right to use the Services will terminate and Customer shall return to Quindar all tangible portions of the Services, including any Documentation provided by Quindar, within fourteen (14) days after termination. In addition, Quindar will return Customer Data to the Customer in a format reasonably agreed upon between the parties.
10.4.3 Survival. Sections 2 (Definitions), 5 (Restrictions), 6 (Ownership), 10 (Term of Agreement), 11 (Quindar Limited Warranty and Disclaimer), 12 (Customer Warranties), 13 (Limitation of Remedies and Damages), 15 (Confidential Information), 16 (General) and any accrued obligation for fees or to make a payment under Section 9 will survive any termination or expiration of this Agreement.
11. Quindar Limited Warranty and Disclaimer.
11.1 Limited Warranty.
Quindar warrants to Customer as follows: (1) Quindar has all rights and authority necessary to enter into this Agreement and carry out its terms and conditions; (2) Quindar will perform any Professional Services and deliver any Deliverables in a professional and workmanlike manner; (3) Quindar shall comply with all applicable governmental laws, ordinances, codes, rules, regulations, and orders in its performance under this Agreement; and (4) to Quindar’s knowledge, the Services and SDK do not contain any data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine or mechanism, that is designed to cause Customer’s computers, systems or software to cease functioning, or to disrupt, disable, harm or otherwise impair them in any manner. The above warranties will not apply: (i) to any modifications made to the Service or SDK by Customer, its Affiliate(s) or any Third Party not acting at Quindar’s direction; or (ii) if applicable, to any Non-Production Environment or Beta Features; or (iii) to any application developed by Customer using the SDK.
11.2 Remedy for Failure of Warranty Regarding Professional Services or Deliverables.
Quindar will, at its sole discretion and as its sole liability and obligation to Customer for failure to provide Professional Services or Deliverables meeting this warranty, (a) re-perform the non-conforming Professional Services or (b) re-deliver the non-conforming Deliverables at no additional cost to Customer if notified of the non-conformity within fourteen (14) days of delivery of the applicable Professional Service or Deliverable, or (c) terminate the applicable Statement of Work and refund the portion of fees attributable to such non-conforming Professional Services or Deliverables.
11.3 Disclaimer.
THIS SECTION 11 IS A LIMITED WARRANTY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11 ALL SERVICES AND THE SDK AND OPEN SOURCE COMPONENTS ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER QUINDAR NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Customer's use of THE SDK AND Services is dependent on the availability and coverage of wireless networks, telecommunications networks and the Internet, which involve facilities owned and operated by Third Parties. QUINDAR IS NOT RESPONSIBLE FOR THE OPERATION, AVAILABILITY OR FAILURE OF ANY THIRD PARTY SYSTEMS OR FACILITIES, INCLUDING WITHOUT LIMITATION THOSE REQUIRED TO USE THE SDK AND/OR THE SERVICES.
12. Customer Warranties.
Customer warrants to Quindar as follows: (i) Customer has all rights and authority necessary to enter into this Agreement and carry out its terms and conditions; (ii) Customer is the owner or licensee of all Customer Data and Customer Materials with the right to grant Quindar the licenses thereto set out in this Agreement; (iii) Customer Data and Customer Materials do not infringe upon any copyright, patent or trademark, or any other intellectual property or proprietary rights of any Third Party; and (iv) Customer will comply with all requirements and restrictions under this Agreement, as well as all applicable laws, rules and regulations.
13. Limitation of Remedies and Damages.
13.1
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
13.2
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, QUINDAR’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO QUINDAR FOR THE SERVICES ASSERTED TO HAVE CAUSED THE DAMAGES IN THE PRIOR 12 MONTHS UNDER THIS AGREEMENT.
13.3
THE PRECEDING LIMITATIONS OF LIABILITY DO NOT APPLY TO LIABILITIES THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS. IN ADDITION, SECTIONS 13.1 AND 13.2 WILL NOT APPLY WITH RESPECT TO ANY CLAIM(S) ARISING UNDER SECTION 3 (“SUBSCRIPTIONS”), SECTION 5 (“RESTRICTIONS”) OR SECTION 14 (“INDEMNIFICATION”).
13.4
The SERVICE IS not fault tolerant and is not designed, manufactured or intended for use in life support, medical, emergency, mission critical or other STRICT LIABILITY OR hazardous activities (“High Risk Activities”). Quindar specifically disclaims any express or implied warranty of fitness for High Risk Activities. Customer represents and warrants that it will not use the SERVICE (or permit it to be used) for High Risk Activities, and agrees that Quindar will have no liability for use of the SERVICE in High Risk Activities. Customer agrees to indemnify Quindar for any damages, liabilities or other losses resulting from such use. YOU ASSUME THE ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE SOFTWARE AND ANY APPLICATION YOU DEVELOP USING THE SDK.
13.5
The parties agree that the limitations specified in this Section 13 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
14. Indemnification.
14.1 Quindar Indemnification.
Quindar shall defend and indemnify Customer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark or other U.S. intellectual property right asserted against Customer by a Third Party based upon Customer’s use of the Service in accordance with the terms of this Agreement, provided that Quindar shall have received from Customer: (i) prompt notice of such claim (but in any event notice in sufficient time for Quindar to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim, so long as such settlement does not involve any admission of liability or payment by Customer without Customer’s written consent; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the Service or any aspect of it is, or in Quindar’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Quindar may, in its sole discretion: (a) substitute for the Service substantially functionally similar services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement or the infringing portion of the Service and refund to Customer the unearned Subscription Fees paid by Customer related to the terminated Services. The foregoing indemnification obligation of Quindar will not apply (and in no event will Quindar have any liability): (1) if the Service is modified by any party other than Quindar; (2) to the extent the Service is combined with other non-Quindar products or services; (3) to any unauthorized use of the Service; (4) to any Third Party code, or (5) any modifications to the Service made to comply with Customer’s specifications. THIS SECTION 14.1 SETS FORTH QUINDAR’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
14.2 Customer Indemnification.
Upon Quindar’s request, Customer agrees to indemnify and defend Quindar from and against any and all claims, lawsuits, demands, actions or other proceedings brought against it by any Third Party due to, arising out of or related to (a) Customer’s or its Authorized Users’ use (and/or mis-use) of the Service, or (b) Customer’s or its Authorized Users’ violation of any law, regulation or Third Party rights. Quindar will provide Customer with all reasonably necessary cooperation in Customer defense of such claim. Customer will have the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim, so long as such settlement does not involve any admission of liability or payment by Quindar. Customer shall pay any and all costs, damages and expenses, including, without limitation, reasonable attorneys’ fees and costs awarded against or otherwise incurred by Quindar in connection with or arising from any such claim, lawsuit, action, demand or other proceeding.
15. Confidential Information.
Except as expressly authorized herein, any party receiving Confidential Information of the other will hold that Confidential Information in confidence and not disclose any Confidential Information. A receiving party may only use Confidential Information to use the Services, provide the Services and/or Professional Services, and/or use the SDK, or otherwise perform an obligation or exercise a right under this Agreement. The receiving party’s nondisclosure obligation will not apply to information which that party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of its own; (c) is rightfully obtained by the receiving party from a Third Party without breach of any confidentiality obligation; or (d) is independently developed by employees of the receiving party who had no access to such information. A receiving party may disclose Confidential Information of the other party if such Confidential Information is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the disclosing party). The disclosing party may seek to limit or prevent such disclosure at its own expense (including legal fees incurred by the party subject to the disclosure obligation), and the receiving party will cooperate with any such efforts. The party receiving Confidential Information acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
16. General.
16.1 Assignment.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Customer may not assign this Agreement without Quindar’s prior written consent. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2 Severability.
If any court of competent jurisdiction adjudges any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
16.3 Governing Law; Jurisdiction and Venue.
This Agreement is governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Jurisdiction and venue for actions related to the subject matter hereof are the State of Delaware and United States federal courts located in Dover, Kent County, Delaware, and both parties hereby submit to the exclusive personal jurisdiction of such courts.
16.4 Notices and Reports.
Any notice which may be or is required to be given under this Agreement will be in writing, and will be deemed to have been received: (a) when delivered personally, (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, (c) one (1) day after having been sent by a commercial overnight carrier with written verification of receipt, or (d) one day after electronic delivery after having been sent with confirmation of a read receipt. Either party may change its notice address by written notice to the other.All notices related to or arising under this Agreement will be addressed to Customer at the address set forth above and to Quindar as follows (or either as subsequently noticed by that party): Quindar Inc., Attn: Important Notice, 1460 Overlook Drive, Suite 117, Lafayette, CO, 80026.
16.5 Amendments; Waivers.
No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
16.6 Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
16.7 Precedence.
The terms of this Agreement, including any applicable Order Forms and Statements of Work and Service Level Agreements, will exclusively govern the purchase, installation and use of Services and Professional Services by the Customer. Any terms and conditions on either party’s purchase orders, confirmations or other pre-printed forms are of no force or effect and are superseded by the terms of this Agreement. The order of precedence for interpretation of this Agreement will be: (i) the terms of an Order Form (ii) the terms of a Statement of Work, and then (iii) the terms and conditions of this Agreement.
16.8 Official Language.
The official language of this Agreement and of any related documents is English. For purposes of interpretation, or in the event of a conflict between English and versions of this Agreement or related documents in any other language, the English language version will control.
16.9 Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
16.10 Force Majeure.
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
16.11 U.S. Government End-Users.
The SDK, and the software that powers the Service, are each commercial computer software. If the user of the Service and/or SDK is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of such software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service and its underlying software, and the SDK, were developed fully at private expense. All other use is prohibited.
16.12 Export Compliance.
Customer acknowledges that the SDK and the software accessible via the Service is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export, re-export or access of any part of the Service or any direct product thereof: (a) into or from (or to or by a national or resident of) any embargoed or terrorist-supporting country; (b) to or by anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to or from any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The SDK and the Service are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
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