This QuikStor Master Subscription Agreement ("Agreement") is a binding agreement between the customer identified on the applicable Order Form ("Customer") and QS Software, LLC ("Provider"). This Agreement governs all Order Forms between the parties and any Customer's and its Authorized User's access to the services outlined therein (the "Services"). The Services are licensed, not sold, to Customer.
WHEREAS, Provider provides access to its software-as-a-service offerings to its customers;
WHEREAS, Customer desires to access certain software-as-a-service offerings described herein, and Provider desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement; and
WHEREAS, by signing the applicable Order Form (defined below), Customer agrees to be bound by the terms and conditions of this Agreement as described below.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Access and Use
(a) Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(g)) right to access and use the Services as outlined and defined in the applicable ordering document executed between QS Software and the Customer identified in such form (each an "Order Form"), during the Term, solely for use by Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder (each an "Authorized User") in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
(b) Documentation and Content License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(g)) license to use Provider's user manuals, handbooks, and any guides relating to the Services provided by Provider to Customer either electronically or in hard copy form, and any end user documentation relating to the Services (collectively, the "Documentation") during the Term solely for Customer's internal business purposes in connection with its use of the Services. Subject to the terms and conditions contained in this Agreement, Provider may provide, and hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(g)) license to use, any templates, documents, notices, messaging content, or other content provided by or on behalf of Provider in the provision of Services ("Provider Content") during the Term solely for Customer's internal business purposes in connection with Customer's use of the Services.
(c) Use Restrictions. Customer shall not use the Services, nor any Third-Party Products incorporated therein, for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, or any Third-Party Products incorporated therein, in whole or in part; (ii) rent, lease, lend, sell, resell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation, nor any Third-Party Products incorporated therein or any data, information, or materials derived therefrom; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component, or attempt to identify or scrape the underlying source code of the Services or any Third-Party Products, in whole or in part; (iv) remove any proprietary notices from the Services, Documentation or any Third-Party Products; (v) use the Services or Documentation, or any Third-Party Products incorporated therein, in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) use the Services, Documentation, or any Third-Party Products in any way beyond the scope outlined in this Agreement or that violates the terms of this Agreement or any Third-Party Product terms; (vii) provide any Customer Data that is false, untrue, defamatory, incomplete, obscene, inappropriate, misleading, fraudulently obtained, or otherwise which Customer does not have the right to provide; (viii) attempt to probe, scan, penetration test, or conduct security research against Provider's or any third-party provider's infrastructure or Service offering; (ix) attempt to circumvent logical access controls, data segregation mechanisms, or any authentication or authorization layer; or (x) use the Service to access, retrieve, or infer data belonging to any other user of the Service, including any Third-Party Product. Customer will immediately cease any activity that triggers anomalous traffic alerts or platform security controls, and will cooperate with Provider in any investigation related thereto. If for any reason, Provider determines that Customer has violated any of these use restrictions, Provider reserves the right to immediately suspend, prohibit, or terminate any and all current or future use of the Services without liability. If Provider has reason to suspect, or learn that anyone is violating the terms of this Agreement, Provider may investigate, take appropriate legal action, including without limitation, cooperating with and assisting law enforcement or government agencies in any resulting investigations of illegal conduct, and/or take legal action as necessary including bringing a lawsuit for damages caused by the violation.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Services, the Documentation, Provider Content, and any and all intellectual property embodied in the Services, Documentation, or Provider Content provided for access or use by the Customer or any Authorized User in connection with the foregoing (collectively, the "Provider IP"). For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is, or Provider suspects Customer or any Authorized User is, using the Provider IP for fraudulent or illegal activities; (D) Customer, or any Authorized User is using the Services in violation of the Agreement, any Order Form, or any terms incorporated therein, (E) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (F) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 4(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's and Authorized User's use of the Services and collect and compile data and information related to Customer's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Service ("Customer Data") input into the Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
2. Customer Responsibilities
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. Provider may from time to time make any third-party products provided with or incorporated into the Services ("Third-Party Products") available to Customer. For purposes of this Agreement, such Third-Party Products may be subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use the Services. Third-Party Products are provided with or otherwise integrated into the Service and Customer is not permitted to resell or sublicense any such products through this Agreement or any additional terms by Third-Party Products providers imposed on Customer. Additionally, such Third-Party products are not separately resold to Customer unless otherwise expressly part of a reseller agreement between Customer and Provider related to use of such products or services. Customer hereby authorizes Provider to process and disclose information about Customer and its Authorized Users, and allow third-party providers to use and process such information, for the limited purpose of providing the Services and Third-Party Products to Customer and its Authorized Users, whether or not such providers are disclosed to Customer or white labeled as part of the Service.
(c) Security.
- Customer has and will retain sole responsibility for: (A) all Customer Data, including its content and use and compliance with all applicable data protection laws; (B) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (C) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (D) the security and use of Customer's and its Authorized Users' access credentials used to access the Service; and (E) all access to and use of the Services and Provider IP and Third-Party Products directly or indirectly by or through the Customer Systems or its or its Authorized Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
- Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (A) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (B) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services. Customer shall immediately notify Provider upon any such breach or suspected breach of its obligations under this Section 2(c). Customer is responsible for ensuring that suitable safeguards are in place prior to transmitting or processing any Customer Data via the Services, and Customer shall use commercially reasonable efforts to prevent unauthorized use or access to the Services (including any Third-Party Products incorporated therein). Customer shall promptly notify Provider of any suspected or actual unauthorized use or access thereto. Provider may immediately suspend the Services if it becomes aware or otherwise suspects Customer or any Authorized User, or any other user via any access credentials, threatens the security, integrity, or availability of any Services.
- Customer acknowledges that neither Provider nor any Third-Party Product provider is responsible for determining which laws or regulations are applicable to Customer's business nor whether the provision of the Services meets, or will meet, the requirements of such laws or regulations. Customer will ensure that Provider's (and its sub-processor's) processing of Customer Data, where done in accordance with Customer's instructions, will not cause Provider or its sub-processors to violate any applicable law or regulation.
- Customer is responsible for ensuring that (A) it has complied, and will continue to comply, with all applicable data protection laws in its use of the Services and its own processing of personal data, and (B) it has, and will continue to have, the right to transfer, or provide access to, personal data to Provider and its sub-processors processing in accordance with the terms of the Agreement.
- Customer must (A) have and maintain a lawful basis under all applicable data protection law (e.g., consent, legitimate interest, contractual necessity) for all personal data submitted via the Service; (B) provide adequate privacy notices to any individuals explaining their data will be processed by Provider and its sub-processors to provide the Services; (C) promptly inform Provider if the lawful basis for such processing changes or lapses. Customer shall (A) not submit any social security numbers, financial account information, biometric or health data, racial or ethnic origin, political opinions, religious beliefs, sexual orientation, criminal history, and similar categories ("Sensitive Data") through the Service without first obtaining Provider's prior written consent, and (B) identify in advance any use of Sensitive Data as it relates to any use of the Services. Customer acknowledges Provider shall have no liability for Sensitive Data submitted via the Service without such prior authorization and confirmation of Customer's safeguards put in place to maintain the confidentiality and security of such information, and in Provider's sole discretion.
- Customer shall maintain its own processes for receiving and promptly relaying data subject requests (access, erasure, rectification, restriction, portability, objection) to Provider within a timeframe that allows Provider to meet its own obligations to other Customers and its sub-processors and under applicable law. Customer shall cooperate with and assist Provider in responding to any data subject or regulatory authority requests relating to Customer Data submitted hereunder. Customer shall not make any commitments to Authorized Users or any end user of its service or business regarding data subject rights that go beyond what the Services and any Third-Party Products can actually deliver.
- Customer shall only use the Service in a manner that does not introduce security vulnerabilities or create risks to the personal data of other users. Customer must promptly notify Provider within 24 hours of any actual or suspected accidental or unlawful destruction, and/or loss, alteration, or unauthorized disclosure of or access to personal data ("Security Incident") they become aware of that involves personal data processed through the Service in order for Provider to be able to meet its upstream obligations to third-party processors. Customer will cooperate fully with any Security Incident investigation Provider or any Third-Party Product provider may conduct.
- Customer shall not make any commitments with any third party or any other person that is contrary to or otherwise conflicts with the terms of this Agreement, any terms related to Provider's or any Third-Party Product provider's terms, policies or procedures.
3. Service Levels and Support
(a) Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit A.
(b) Support. The access rights granted hereunder entitle Customer to the support services described in Exhibit A following the Effective Date under this Agreement.
4. Fees and Payment
(a) Fees. Customer shall pay Provider the fees ("Fees") as set forth in the Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. All Fees due shall be considered fully earned and non-refundable. If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 15 days or more, Provider may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
(c) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 4(a). Customer shall pay for the costs of the audit if the audit determines that Customer's underpayment equals or exceeds 10% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.
5. Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information includes all information and data generated by the Receiving Party that contains, reflects or is derived from the furnished information or data, including, without limitation, technical or non-technical information, patents, copyrights, trade secrets, proprietary information, methods, ideas, concepts, designs, inventions, know-how, processes, computer or software programs, software source documents, source codes, object codes, schematics, formulae related to the current, future and proposed products and services of the Disclosing Party or any third party which Disclosing Party provided any such information about, research, experimental work, development, design details and specifications, samples, models, engineering data, financial records, accounting records, financial statements, forecasts, projections, budgets, plans (whether business, strategic, marketing or other), client or customer lists, prospective client or customer lists, sales data, sales analysis, equipment and other assets, prices, cost or profit figures, sources of supplies, pricing methods, personnel, marketing research, any information about, derived from the use of, or provided by any Third-Party Products provider, in each case whether or not marked "Confidential" or "Proprietary." Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary or useful for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
7. Limited Warranty and Warranty Disclaimer
(a) Provider represents and warrants that the Services will conform in all material respects to the service levels set forth in Exhibit A when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit A. The remedies set forth in Exhibit A are Customer's sole remedies and Provider's sole liability under the limited warranty set forth in this Section 7(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) Customer represents and warrants to Provider that: (A) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law; (B) it has not and will not enter into any agreement with any person or third party that conflicts with the terms or obligations hereunder, including any which are incorporated herein or in any Order Form by reference; (C) it will comply with all applicable laws, rules, and regulations related to use of or access to the Services, including any Third-Party Products, including but not limited to any data protection regulations and USPS mail classification rules.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), THE PROVIDER IP AND ALL THIRD-PARTY PRODUCTS ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY THIRD-PARTY PRODUCTS, OR PRODUCTS, MATERIALS, DATA, INFORMATION OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY PRODUCTS, INCLUDING ANY PRODUCTS OR MATERIALS DERIVED FROM OR RESULTS THEREOF, ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATED THERETO.
(d) Customer acknowledges that the Provider IP, including but not limited to the Services, Documentation, and Provider Content, and all results arising out of or related to the foregoing, are provided for convenience and informational purposes only and do not constitute professional advice. It is entirely Customer's and its Authorized User's obligation to review, revise, edit and proof read all Provider Content for accuracy and completeness, and Customer shall not act upon the information in any Provider Content or decide not to act based upon such Provider Content, without first taking such actions and seeking appropriate professional counsel. For the avoidance of doubt, the Provider Content and any results derived therefrom should not be understood as any type of guarantee or assurance for any purpose.
8. Indemnification
(a) Provider Indemnification. (i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, fines, penalties, sanctions, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights/US patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of such Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) If a Third-Party Claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. (iii) This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights and any Third-Party Claims based on, arising out of, or resulting from (directly or indirectly) Customer's or any Authorized User's (i) acts or omissions, including but not limited to breach of this Agreement or any Order Form, negligence, willful misconduct, or violation of any applicable laws; (ii) use or misuse of the Services or any Third-Party Products, or any information, data, or materials derived therefrom in a manner not authorized by this Agreement or any Order Form; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (iv) violations of Section 5; (v) any Security Incident that is caused directly or indirectly by Customer or any Authorized User or otherwise that originates from Customer Systems or use of Customer's access credentials; or (vi) modifications to the Services or any Third-Party Products not made by Provider or the applicable provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 8 EXCEED THE TOTAL AMOUNT PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Limitations of Liability
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination
(a) Term. The Term of the Services shall be in accordance with the Order Form incorporated into this Agreement.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, or (B) breaches any of its obligations under Section 1(c) or Section 5;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 10 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under Section 5, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 10(d) and Sections 1, 4, 5, 6, 7(b), 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Order Form, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Order Form; (ii) second, this Agreement, excluding its Exhibits; (iii) third, the Exhibits to this Agreement as of the Effective Date; and (iv) fourth, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the applicable Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, network failures, carrier outages, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. Provider may, at its sole discretion, amend the terms of this Agreement from time to time. If changes occur, Provider will notify the Customer by email to the email affiliated with the Order Form(s) between Customer and Provider at least thirty (30) days prior to such updates taking effect. Updated versions will never apply retroactively and will give the date they go into effect. Customer's continued use of the Services following the notice of any changes to this Agreement means Customer accepts those new terms. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of Los Angeles and County of Los Angeles and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Services is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(j) Anti-Corruption and International Trade Laws. Each party (a) warrants that it will comply with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, "Anti-Corruption and Trade Laws") in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States, and (b) represents that it has not made, offered, promised to make, or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws. Customer will promptly notify Provider in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by Provider. If applicable, you represent that you have obtained, and warrant that you will continue to obtain, all licenses or other authorizations required to export, re-export, or transfer the Services. Each party represents that it is not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, "Sanctions Lists"). Customer will immediately, and Provider will have all rights to, (i) discontinue Customer's use of the Services if it becomes placed on any Sanctions List and (ii) remove its Authorized User's access to the Services if any Authorized User becomes placed on any Sanctions List. Customer represents that it has not, and warrants that it will not, export, re-export, or transfer the Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately upon written notice to the other party if the other party is in breach of its obligations in this Section. Customer may be blocked from any of its accounts if operating in a country or region prohibited under this Section. Provider and its Third-Party Product providers may take any actions to enforce such restrictions without liability.
(k) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(l) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
Exhibit A: Service Levels and Support
1. Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Services Available at least ninety-nine percent (99%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a "Service Period"), excluding unavailability as a result of any of the Exceptions described below in this Section 1 (the "Availability Requirement"). "Service Level Failure" means a material failure of the Services to meet the Availability Requirement. "Available" means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User, or access to or use of the Services by Customer or any Authorized User, or using Customer's or an Authorized User's access credentials, that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer's or its Authorized User's Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services pursuant to the Agreement. Third-Party Products may have separate uptimes and service levels associated therewith. This Exhibit A sets forth the service levels and related support solely with regard to Services offered directly by and that are proprietary to Provider and no other third-party service offering. Provider shall not be liable for any unavailability, downtime (scheduled or unscheduled), outage, network failure, or any other failure or incident regarding any Third-Party Product incorporated into or otherwise provided with the Service.
2. Scheduled Downtime. Provider will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services between the hours of 12:00 a.m. and 5:00 a.m., Pacific Standard Time; and (b) give Customer at least 12 hours prior notice of all scheduled outages of the Services ("Scheduled Downtime"). Provider shall not be liable for any Service interruptions, unscheduled downtime, or other unavailability caused by Customer-side misconfigurations, excessive traffic, or security incidents originating from the Customer's environment.
3. Service Support. The Services include Provider's standard customer support. For support, Customer may contact Provider at help@quikstor.com. Support may be offered for Third-Party Products in accordance with such provider's terms. If Customer requests any support for such products or services, Customer may contact QS Software's support email above to be directed to the appropriate support channels. Provider will not be liable to Customer for any Third-Party Product provider's failure to offer any level of support on such products made available through the Services.