QSR INTERNATIONAL, LLC AND ITS AFFILIATES (COLLECTIVELY, “QSR” OR ‘WE”) IS WILLING TO PROVIDE CERTAIN SOFTWARE AND SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO A WRITTEN OR ONLINE ORDER SCHEDULE OR SIMILAR DOCUMENT WITH QSR THAT REFERENCES THESE TERMS AND CONDITIONS OR THAT OTHERWISE PURCHASES SOFTWARE OR SERVICES ON QSR’S MYQSR PORTAL ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THESE TERMS AND CONDITIONS (“AGREEMENT”). READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SOFTWARE OR SERVICES FROM QSR. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND QSR. BY ENTERING INTO A WRITTEN OR ONLINE ORDER SCHEDULE OR SIMILAR DOCUMENT WITH QSR THAT REFERENCES THIS AGREEMENT OR BY PURCHASING SOFTWARE OR SERVICES ON QSR’S MYQSR PORTAL, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A "CORPORATE ENTITY"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM "YOU" OR "CUSTOMER" REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.
1. DEFINITIONS
1.1 Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition, “control” means the direct possession of a majority of the outstanding voting securities of an entity.
1.2 Cloud Service or Services means QSR’s proprietary web-based software program or other cloud based software programs listed on the applicable Order Schedule.
1.3 Customer Data means all Data of Customer made available by Customer to QSR for use in connection with the Services.
1.4 Data means text, images, content, documents, materials and all other forms of data or communication.
1.5 Documentation means the documentation for the Software or Cloud Service generally supplied by QSR to assist its customers in the use of the Software or Cloud Service, including user and system administrator guides and manuals and other written materials, including the software functional specifications.
1.6 Effective Date is the date that the first Order Schedule is entered into between the Parties referencing this Agreement.
1.7 Losses means all claims, actions, proceedings, damages, losses, liabilities and expenses, including reasonable attorney fees.
1.8 myQSR Portal means QSR’s online portal where customers may purchase certain Software and Services from QSR.
1.9 Order Schedule means each QSR ordering document electronically entered into or signed by duly authorized representatives of both parties which references this Agreement, identifies the specific Software or Services ordered by Customer from QSR, sets forth the prices for such Services and contains other applicable terms and conditions. Order Schedules may also be entered into via the myQSR Portal.
1.10 QSR Data means all Data made available by QSR to Customer in connection with Customer’s use of the Services.
1.11 Software means the software products provided by QSR to Customer for on premise use by Customer and its Users and which are listed on an Order Schedule and all updates, enhancements, bug fixes and new releases thereto that QSR makes available to Customer hereunder.
1.12 Users mean individuals who are authorized by Customer to use the Services, and, with respect to the Cloud Service, who have been supplied passwords by Customer (or by QSR at Customer’s request). Users consist of designated employees, faculty, students, interns and independent contractors of Customer.
2. SERVICES
2.1 Services. QSR shall provide Customer with the specific Services and/or Software specified on an Order Schedule. Customer acknowledges that (i) the Cloud Service is provided in accordance with and is subject to the provisions set forth in this Agreement, the applicable Order Schedule as well as the additional terms and conditions set forth on Exhibit A hereto and (ii) the Software is provided in accordance with and is subject to the provisions set forth in this Agreement, the applicable Order Schedule as well as the additional terms and conditions set forth on Exhibit B hereto. Any conflict between the terms and conditions set forth in this Agreement and any Order Schedule shall be resolved in favor of this Agreement unless such Order Schedule expressly references the conflicting provision in this Agreement that it is intended to control and states that it is to control.
2.2 Affiliates Under Direct Order Schedule. Customer or an Affiliate of Customer may enter into an Order Schedule with QSR or a QSR Affiliate to provide Software or Services to such Customer or a Customer Affiliate under the terms of this Agreement. Each Order Schedule, together with the terms of this Agreement, shall constitute and be construed as a separate agreement between the two parties entering into such Order Schedule. For the avoidance of doubt, upon the execution of an Order Schedule issued hereunder, the entities that are a party to such Order Schedule shall be subject to, and bound by, the terms of this Agreement as if each such entity executed this Agreement as “QSR” and a “Customer”, as applicable. QSR or any QSR Affiliate that is not a party to an Order Schedule shall not be jointly and severally liable for the obligations of the QSR Affiliate that is a party to such Order Schedule, and Customer or any Customer Affiliate that is not a party to an Order Schedule shall not be jointly or severally liable for the obligations of the Customer Affiliate that is a party to such Order Schedule.
3. FEES; PAYMENT TERMS
3.1 Fees. Customer agrees to pay QSR for the Software and Services provided and expenses incurred on the basis and at the rates specified in each Order Schedule, as the case may be. Unless otherwise set forth on the Order Schedule, payment shall be made in US Dollars (or such other currency set forth in the Order Schedule).
3.2 Taxes. Customer shall be solely and exclusively responsible for the payment of required sales, use, VAT and similar taxes arising from or relating to the Software and Services rendered hereunder, except for taxes related to the net income of QSR and any taxes or obligations imposed upon QSR under federal, state and local wage laws.
4. CONFIDENTIALITY AND DATA SECURITY
4.1 Confidential Information. During the term of this Agreement, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include 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. The parties expressly agree that the Customer Data is Customer’s Confidential Information and the Software is QSR’s Confidential Information. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
4.2 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.
4.3 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 shall 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.
5. LIMITED WARRANTIES
5.1 Services and Software Warranty. The warranties for the Cloud Service and the Software are set forth in Exhibit A and Exhibit B attached hereto, respectively.
5.2 DPA. During the term of this Agreement, QSR shall comply with the DPA.
5.3 No Other Warranty. QSR DOES NOT REPRESENT THAT THE SERVICES OR SOFTWARE WILL BE ERROR-FREE OR THAT THE SERVICES OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE CLOUD SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY QSR. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER MAY HAVE OTHER WARRANTY RIGHTS, WHICH MAY VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL QSR OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS BE LIABLE TO CUSTOMER FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, EVEN IF QSR OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS HAS BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL QSR’S LIABILITY EXCEED THE FEES CUSTOMER PAID FOR THE SOFTWARE OR SERVICES GIVING RISE TO THE CLAIM. NOTHING IN THIS AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT QSR’S LIABILITY TO CUSTOMER FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW.
7. TERM
7.1 Term. This Agreement will commence on the Effective Date as set forth above and will continue in effect until otherwise terminated in accordance with Section 7.2 below. The term of each Order Schedule for any Services shall be set forth on the Order Schedule. Upon the expiration of the initial term of any Order Schedule or any renewal term, unless either party provides the other with written notice of its election not to renew such Order Schedule at least thirty (30) days prior to such renewal date, the Order Schedule will automatically renew, for additional periods equal to the original term of the Order Schedule. QSR reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such Order Schedule upon providing Customer written notice thereof (which notice may be provided by e-mail) at least sixty (60) days prior to the then current renewal date.
7.2 Termination. Notwithstanding the foregoing, either party may terminate this Agreement or any Order Schedule (i) immediately in the event of a material breach of this Agreement or any such Order Schedule by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Schedule shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Schedules. This Agreement shall also automatically terminate if at such time there are no outstanding Order Schedules then currently in effect. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Schedule.
7.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Schedule, QSR shall no longer provide the applicable Services to Customer and Customer shall cease and cause its Users to cease using the Services and the Software. No refund shall be provided unless termination was by Customer due to QSR’s uncured breach in which case Customer shall be entitled to a refund of prepaid, unused fees paid for the balance of the unexpired term of the Order Schedule. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession.
8. OWNERSHIP; USE OF CONTENT; HIPAA OBLIGATIONS
8.1 Software. Ownership of the Software, any related Documentation, copies, modifications and derivatives of the Software or Documentation (in whole or in part), and all related copyright, patent, trade secret and other proprietary rights, are and will remain the exclusive property of QSR and/or its licensors. QSR reserves all rights not expressly granted by it to Customer under this Agreement. There are no implied rights.
8.2 Customer Data. Customer retains ownership of all right, title and interest in and to all Customer Data. During the term of this Agreement, Customer hereby grants to QSR a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, display, transmit, and distribute the Customer Data solely as necessary to provide the Cloud Service to Customer. Notwithstanding the foregoing, Customer acknowledges and agrees that QSR shall have the right to copy, use, distribute, and display any information, analysis, statistics and other data generated by the Cloud Service (or derived from Customer’s use of the Cloud Service), including compilation of aggregated statistics about the Cloud Service; provided, however, that QSR shall not publicly disclose or distribute any such data unless such data is in an aggregated anonymized form that would not permit a third party to identify the data as associated with Customer. Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. As between the parties, the accuracy of Customer Data shall be Customer’s sole responsibility. Upon termination of the Cloud Service, QSR shall make such Customer Data available to Customer in a mutually agreed upon format provided and following the 90th day after termination QSR will destroy all Customer Data.
8.3 QSR Data. QSR retains ownership of all right, title and interest in and to all QSR Data. During the term of this Agreement, QSR grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.2), royalty-free right to use, display, transmit, and distribute the QSR Data solely in connection with Customer’s permitted use of the Cloud Service and Software.
8.4 Customer Obligations. Customer is solely responsible for all Customer Data. QSR does not guarantee the accuracy, integrity or quality of such Customer Data. Neither Customer nor its Users shall use the Cloud Service or Software to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Cloud Service or networks connected to the Cloud Service; or (e) violate any applicable law or regulation.
9. INDEMNIFICATION
9.1 QSR Indemnification. Subject to Section 9.3 below, QSR will indemnify, defend and hold Customer harmless from and against any and all Losses incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Customer alleging that the use of the Services or Software as permitted hereunder infringes any intellectual property rights or proprietary rights of a third party. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services or Software in violation of this Agreement or applicable law, (b) use of the Services or Software after QSR notifies Customer to discontinue use because of an infringement claim, (c) any claim relating to any Customer Data, (d) modifications to the Services or Software made other than by QSR (where the claim would not have arisen but for such modification), (e) the combination, operation, or use of the Services or Software with materials which were not provided by QSR, to the extent that Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by QSR with Customer’s custom requirements or specifications if and to the extent such compliance with Customer’s custom requirements or specifications resulted in the infringement. If the Services or Software are held to infringe, QSR will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect Customer against such claim without cost to Customer; (b) to replace the Services or Software with non-infringing Services or Software ; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Order Schedule and refund to the Customer any prepaid unused fees paid to QSR for the infringing Services or Software as the case may be. The rights and remedies granted Customer under this Section 9.1 state QSR’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.
9.2 Customer Indemnification. Subject to Section 9.3 below, Customer shall indemnify, defend, and hold QSR harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against QSR (i) alleging that the Customer Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 8.4.
9.3 Indemnification Procedure. The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying party shall not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).
10. GENERAL PROVISIONS
10.1 Entire Agreement and Controlling Documents. This Agreement, including all Exhibits hereto and all Order Schedules, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement or the applicable Order Schedule and that are duly signed by the authorized representatives of both parties may amend this Agreement or such Order Schedule; provided, however, QSR reserves the right to modify this Agreement by posting a new Agreement online and notifying Customer of such new agreement provided that such new Agreement will only be applicable for any Order Schedule entered into after the date such new Agreement goes into effect. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by QSR.
10.2 Assignment. This Agreement shall be binding upon and for the benefit of QSR, Customer and their permitted successors and assigns. Either party may assign this Agreement and all Order Schedules as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void.
10.3 Governing Law. If Customer’s principal offices or residence is in North America, then this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law provisions and the parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Boston, Massachusetts, for the purposes of adjudicating any dispute arising out of this Agreement. If Customer’s principal offices or residence is based outside of North America, then this Agreement shall be governed by and construed in accordance with the laws of the England and Wales without regard to its conflict of law provisions and the parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any court of competent jurisdiction located in London England, for the purposes of adjudicating any dispute arising out of this Agreement. The application of the United Nations convention on the Sale of Goods (CISG) shall not apply.
10.4 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
10.5 Relationship of the Parties. QSR and Customer are independent contractors, and nothing in this Agreement shall 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 shall 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.
10.6 Certification and Audit. At QSR’s written request and no more than once every twelve (12) months, Customer shall provide QSR with a signed certification (i) verifying that the Software and/or Cloud Service is being used pursuant to the provisions of this Agreement. In addition to the foregoing, QSR may, upon written notification to Customer, perform an audit, not more than once per twelve (12) month period, of Customer’s use of the Software and/or Cloud Service and Customer’s compliance with the provisions of this Agreement. Any such audit shall be made at QSR’s expense and shall occur during the Customer’s normal business hours. QSR shall notify Customer, in writing, ten (10) business days prior to such audit. Such audit shall not unreasonably interfere with Customer’s business operations and Customer agrees to cooperate with QSR in any such audit.
10.7 Publicity. Neither party will use, publicize, or issue any press release which includes the name, trademarks, or other proprietary identifying symbol of the other party without the prior written consent of the other party; provided, that for Customers that are entities, QSR may include Customer’s name and logo on lists of selected customers.
10.8 Force Majeure. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by 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.
10.9 Export; Government Restricted Rights. Customer acknowledges that the export of any Software or Cloud Service is subject to export or import control and Customer agrees that any Software or Cloud Service or the direct or indirect product thereof will not be exported (or re exported from a country of installation) directly or indirectly, unless Customer obtains all necessary licenses from the U.S. Department of Commerce or other agency as required by law. The Software, Cloud Service and the Documentation have been developed at private expense and are sold commercially. They are provided under any U.S. government contracts or subcontracts with the most restricted and the most limited rights permitted by law and regulation. Whenever so permitted, the government and any intermediate buyers will obtain only those rights specified in QSR’s standard commercial license. Thus, the Software and Cloud Service referenced herein, and the Documentation provided by QSR hereunder, which are provided to any agency of the U.S. Government or U.S. Government contractor or subcontractor at any tier shall be subject to the maximum restrictions on use as permitted by FAR 52.227-19 (June 1987) or DFARS 227.7202-3(a) (Jan. 1, 2000) or successor regulations.
10.10 Open Source Components. Customer acknowledges that the Software may contain or be accompanied by certain third party embedded open source software components (“Open Source Components”). These Open Source Components, if any, are identified in, and subject to, special license notices, terms and/or conditions as set forth in the Documentation and/or in an installation or similar file accompanying the Software (“Open Source Notices”).
10.11 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall 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) upon confirmation that an email sent to the other party’s designated email address was received. Notices shall be sent to the address of the party set forth on the applicable Order Schedule or to the designated email address set forth in the Order Schedule. Either party may change its address or designated email address by giving written notice of such change to the other party.
10.12 No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person.
10.13 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 shall 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.
Exhibit A
CLOUD SERVICE
In the event that Customer purchases Cloud Service, the following additional terms shall apply:
A. Cloud Service.
1. Cloud Service. Subject to the terms and conditions of this Exhibit A and the Agreement, QSR will provide Customer with access to the Cloud Service during the term set forth on the applicable Order Schedule. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Cloud Service. QSR assumes no responsibility for the reliability or performance of any connections as described in this Section.
2. License Grant. Subject to the terms and conditions of this Exhibit A and the Agreement, and in consideration for the payment of fees set forth on each respective Order Schedule for the Cloud Service, QSR hereby grants to Customer, solely during the term of the Order Schedule, a non-exclusive, non-transferable license to allow the number of Users (if applicable) set forth on the applicable Order Schedule to access the Cloud Service solely for Customer’s internal use and solely for the specific service offering (as indicated on the applicable Order Schedule). This license is restricted to use by Customer and its Users and does not include the right to use Cloud Service on behalf of any third party or the right to permit any non-User to access or use the Cloud Service. Customer also agrees to be bound by any further restrictions set forth on the Order Schedule. All rights not expressly granted to Customer are reserved by QSR and its licensors. There are no implied rights. Except as expressly set forth in the Agreement or this Exhibit A, all fees are non-refundable.
3. Licensed Volume. Customer acknowledges that access and use of the Cloud Service is licensed for use up to the number of Users or other metric purchased by Customer and set forth on the applicable Order Schedule (the “Volume Limitations”). By way of example, if an Order Schedule specifies a specific number of Users, then the Cloud Service may only be accessed and used for that number of Users. In the event that the Cloud Service is used in excess of the Volume Limitations set forth on the Order Schedule, then Customer shall be obligated to pay QSR for the number of applicable Users or other metric purchased by Customer, as the case may be, in excess of such Volume Limitations at the rates set forth in the Order Schedule. Customer may also add licenses for additional Users or other metric purchased by Customer by executing a new Order Schedule or addendum thereto.
4. Restrictions. Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Exhibit A and the Agreement. Unauthorized use, resale or commercial exploitation of the Cloud Service in any way is expressly prohibited. Without QSR’s express prior written consent in each instance, Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Cloud Service, or access the Cloud Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Cloud Service. Except as expressly permitted herein, Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Cloud Service to any third-party. In addition to QSR’s other remedies hereunder, QSR reserves the right upon notice to Customer to terminate any User’s right to access the Cloud Service if such User has violated any of the restrictions contained in the Agreement (including this Exhibit A).
5. Ownership. Customer acknowledges and agrees that as between QSR and Customer, all right, title and interest in and to the Cloud Service (excluding Customer Data), and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain QSR’s or its licensors’, and QSR in no way conveys any right or interest in the Cloud Service other than a limited license to use them in accordance herewith.
6. Cloud Service Warranty. QSR warrants that during the term of any Order Schedule for the Cloud Service, (i) the Cloud Service will conform, in all material respects, with its Documentation and (ii) it will use commercially reasonable efforts to ensure that it does not introduce any virus, Trojan horse or other malicious code into the Cloud Service environment. QSR does not warrant that it will be able to correct all reported defects or that use of the Cloud Service will be uninterrupted or error free. QSR makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, QSR will, at no additional cost to Customer, provide remedial services necessary to enable the Services to conform to the warranty. Customer will provide QSR with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. Such warranties shall only apply if the Cloud Service has been utilized by Customer in accordance with the Order Schedule and this Agreement. If QSR is unable to remedy the warranty breach within thirty (30) days then Customer may terminate the applicable Order Schedule and will receive a pro rata refund of the prepaid, unused Fees paid by Customer for the balance of the unexpired term of the Order Schedule. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranties.
7. Handling of Customer Content Upon Termination. Customer agrees that following termination of Customer’s account and/or use of the Cloud Service, QSR may immediately deactivate Customer’s account and that following a reasonable period of not less than ninety (90) days shall be entitled to delete Customer’s account from QSR’s “live” site. Customer further agrees that QSR shall not be liable to Customer nor to any third party for any termination of Customer access to the Cloud Service or deletion of Customer Data, provided that QSR is in compliance with the terms of this Section 7.
8. Users: Passwords, Access and Notification. Customer shall authorize access to and assign unique passwords to the number of Users purchased by Customer on the Order Schedule. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User’s passwords. Customer agrees to immediately notify QSR if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords.
9. Modifications to Cloud Service. QSR may make modifications to the Cloud Service or particular components of the Cloud Service from time to time provided that such modifications do not materially degrade any functionality or features of the Cloud Service and QSR will use commercially reasonable efforts to notify Customer of any material modifications.
10. Storage Limit. Customer’s use of the Cloud Service must not exceed any storage limits set forth on the applicable Order Schedule or, with respect to Citavi Web, 1 GB.
Exhibit B
SOFTWARE TERMS
In the event that Customer licenses any of QSR’s Software for installation at a Customer location, the following additional terms shall apply:
1.1 License. Subject to the terms and conditions of this Agreement, upon the execution of an Order Schedule by QSR and Customer, QSR grants to Customer a non-exclusive, non-transferable perpetual license to install, execute and use the Software, in object code form only, as well as the accompanying Documentation, solely for Customer’s internal use, and solely in connection with the number of licenses licensed by Customer (as reflected on the Order Schedule). Customer shall only install the Software at the site(s) set forth on the Order Schedule (the “Sites”). The preceding sentence does not, however, restrict the ability of Users to access the Software over the internet from any site outside the Sites. The foregoing license is subject to the other terms set forth in this Agreement, any additional terms set forth in the applicable Order Schedule, and payment of all applicable license fees. Except as expressly set forth in the Agreement or this Exhibit, all fees are non-refundable.
1.2 Copies. Customer may make a reasonable number of copies of the Software and Documentation solely for Customer’s internal back-up and archival purposes only, provided that all such copies shall bear the original and unmodified copyright, patent and other intellectual property markings as originally delivered by QSR.
1.3 Delivery. QSR shall deliver one (1) copy of the ordered Software and Documentation after its execution of the applicable Order Schedule or on such other date as may be specified in the applicable Order Schedule.
1.4 Software Warranty. QSR warrants that for a period of ninety (90) days following delivery of the Software by QSR, the Software will perform in conformity with its Documentation, in all material respects. Such warranty does not apply to Software that has been damaged, mishandled, mistreated, altered or used, maintained or stored contrary to any written instructions provided by QSR. If the above warranty is breached, QSR will, at its option and at no cost to Customer, (a) provide remedial services necessary to enable the Software to conform to the warranty, or (b) replace any defective Software. If QSR is unable to fix or replace the defective Software within thirty (30) days then Customer may terminate the applicable Order Schedule and will receive a refund of the license Fees paid by Customer for the defective Software. Customer will notify QSR promptly in writing of any breach of warranty. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranties.
1.5 Users. Unless otherwise expressly set forth on an Order Schedule, the Software may only be accessed and used by Customer and its Users; provided, however, that Customer shall take appropriate action, by instruction or agreement, to ensure that the Software is being used by such Users in accordance with the terms and conditions of this Agreement. Customer shall be liable for any breach of this Agreement by any of its Users.
1.6 Restrictions. Customer shall not and shall not allow any third party to decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software or any portion thereof, or otherwise derive its source code; (ii) modify, translate, or create derivative works of the Software or Documentation; (iii) sell, lease, license, sublicense, copy (except as permitted in Section 1.2 above), market or distribute the Software or Documentation; or (iv) use the Software for any timesharing, service bureau, subscription, rental or similar uses without the express prior written consent of QSR in each instance or use the Software on behalf of any third party. Customer shall take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Software.
