PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE. BY USING THE SERVICE OR CLICKING “AGREE” YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement is between Qliktag Software, Inc., a Delaware corporation (Qliktag), and the Customer agreeing to these terms (Customer).
1. SOFTWARE SERVICE.
This agreement provides Customer access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, as specified on an order (Service).
2. USE OF SERVICE.
a. Customer Owned Data. All data uploaded by Customer to the Service remains the property of Customer, as between Qliktag and Customer (Customer Data). Customer grants Qliktag the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
b. Access and Usage. Customer may allow its contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
c. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Qliktag promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s user guide and applicable law.
d. Qliktag Support. Qliktag must provide Customer support for the Service under the terms of Qliktag’s Customer Support Policy (Support), which is located at www.qliktag.com/support.
e. 30-Day Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for a 30-day time period (unless extended by Qliktag in writing). The Service is provided ‘AS IS’, with no warranty during this time period. All Customer Data will be deleted after the trial period, unless Customer converts its account to a paid Service.
f. Implementation Services. Implementation services (Implementation Services) may also be provided by Qliktag if specified under an order and a statement of work (SOW). Qliktag provides Customer with a non-exclusive, non-transferable license in any work product created under an SOW (Deliverable) to be used solely with the Service.
3. SERVICE LEVEL AGREEMENT & WARRANTY.
a. Warranty. Qliktag warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service and the API for a minimum of availability in any given month as provided in the chart below (excluding maintenance outages, outages beyond Qliktag’s reasonable control, and outages that result from any Customer technology issues); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any paid term.
i. Availability Warranty and Credit.
99.5% = 3% of monthly fee for each full hour of an outage (beyond the warranty).
*Maximum amount of the credit is 100% of the fee for such month.
b. LIMITED REMEDY. CUSTOMER’S EXCLUSIVE REMEDY AND QLIKTAG’S SOLE OBLIGATION FOR ITS FAILURE TO MEET THE WARRANTY IN SECTION (A)(I) ABOVE WILL BE FOR QLIKTAG TO PROVIDE A CREDIT FOR THE APPLICABLE MONTH, AS PROVIDED IN THE CHART ABOVE (IF THIS AGREEMENT IS NOT RENEWED, THEN A REFUND FOR THE MONTH), PROVIDED THAT CUSTOMER NOTIFIES QLIKTAG OF SUCH BREACH WITHIN 30 DAYS OF THE END OF THAT MONTH.
c. Implementation Services Warranty. Qliktag warrants that, for a period of 30 days from delivery, it has performed the Implementation Services in conformance with the SOW. Customer must notify Qliktag of any breach of this warranty no later than 30 days after delivery of the Services. CUSTOMER’S EXCLUSIVE REMEDY AND QLIKTAG’S ENTIRE LIABILITY UNDER THIS WARRANTY WILL BE FOR QLIKTAG TO RE-PERFORM ANY NON-CONFORMING PORTION OF THE IMPLEMENTATION SERVICES, OR IF QLIKTAG CANNOT REMEDY THE BREACH, THEN REFUND THE PORTION OF THE FEE ATTRIBUTABLE TO SUCH NONCONFORMING PORTION OF THE SERVICES. THIS WARRANTY WILL NOT APPLY TO THE EXTENT CUSTOMER, ITS CONTRACTORS, OR AGENTS HAVE MODIFIED ANY ITEM.
d. DISCLAIMER. QLIKTAG DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE QLIKTAG TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, QLIKTAG DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Qliktag’s Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information. Customer’s Confidential Information includes, without limitation, the Customer Data.
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
d. Data Security Measures.
i. Security Measures. In order to protect Customer’s Confidential Information, Qliktag: (i) implements and maintains all reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, and will maintain the confidentiality, security, and integrity of such Confidential Information; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer’s Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of any safeguards in place to control these risks (collectively, Security Measures).
ii. Notice of Data Breach. If Qliktag knows that Customer Confidential Information has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, Qliktag will promptly alert Customer of any such data breach, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. Qliktag will give highest priority to immediately correcting any data breach, and will devote such resources as may be required to accomplish that goal. Qliktag will provide Customer with all available information reasonably necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted, Customer may provide notice to any or all parties affected by any data breach. In such case, Qliktag will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. Qliktag will provide Customer with information about what Qliktag has done or plans to do to minimize any harmful effect of the unauthorized use or disclosure of, or access to, Confidential Information.
a. Reservation of Rights. The Service and the Deliverables are the proprietary property of Qliktag and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with Qliktag, unless the Deliverables are specifically designated as ‘work made for hire’ under the SOW. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Qliktag reserves all rights unless expressly granted in this agreement.
b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.
c. Statistical Information. Qliktag may compile statistical information related to the performance of the Service, and may make such information publicly available, provided that such information does not identify Customer’s Confidential Information or any data, and there is no means to re-identify the information or data. Qliktag retains all intellectual property rights in such information.
d. API. Qliktag provides access to its application-programming interface (API) as part of the Service for no additional fee. Subject to the other terms of this agreement, Qliktag grants Customer a non-exclusive, nontransferable, terminable license to interact only with the Service as allowed by the API.
– Customer may not use the API in a manner–as reasonably determined by Qliktag–that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with any part of the API. If any of these occur, Qliktag can suspend or terminate Customer’s access to the API on a temporary or permanent basis.
– Qliktag may change or remove existing endpoints or fields in API results upon at least 30 days notice to Customer, but Qliktag will use commercially reasonable efforts to support the previous version of the API for at least 6 months. Qliktag may add new endpoints or fields in API results without prior notice to Customer.
7. TERM AND TERMINATION.
a. Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).
b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c. SOW Termination. Either party may terminate and SOW upon 30 days prior written notice to the other party. Upon such termination, Customer must pay Qliktag for all Implementation Services performed and expenses incurred through the termination date.
d. Return of Customer Data.
i. Within 60 days after termination, upon request Qliktag will make the Service available for Customer to export Customer Data as provided in Section 2(a).
ii. After such 60-day period, Qliktag has no obligation to maintain the Customer Data and may destroy it.
e. Return Qliktag Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Qliktag for any unpaid amounts and destroy or return all property of Qliktag. Upon Qliktag’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
f. Suspension for Violations of Law. Qliktag may temporarily suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law. Qliktag will attempt to contact Customer in advance.
g. Suspension for Non-Payment. Qliktag may temporarily suspend the Service if Customer is more than 30 days late on any payment due pursuant to an order.
8. LIABILITY LIMIT.
a. Exclusion of Indirect Damages. Qliktag is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.
b. Total Limit on Liability. Except for Qliktag’s indemnity obligations, Qliktag’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
9. DEFENSE OF THIRD-PARTY CLAIMS.
a. Qliktag will defend or settle any third-party claim against Customer to the extent that such claim alleges that Qliktag technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies Qliktag of the claim in writing, cooperates with Qliktag in the defense, and allows Qliktag to solely control the defense or settlement of the claim. Costs. Qliktag will pay infringement claim defense costs it incurs in defending Customer, Qliktag-negotiated settlement amounts, and court-awarded damages. Process. If such a claim appears likely, then Qliktag may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Qliktag determines that none of these are reasonably available, then Qliktag may terminate the Service and refund any prepaid and unused fees. Exclusions. Qliktag has no obligation for any claim arising from: Qliktag’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by Qliktag. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND QLIKTAG’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
b. If a third party claims against Qliktag that any part of the Customer Data infringes or violates that party’s patent, copyright, or other right, Customer will defend Qliktag against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that Qliktag promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
10. GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the State of California (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Orange County, California, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
11. OTHER TERMS.
a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by Qliktag.
b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
c. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
f. No Additional Terms. Qliktag rejects additional or conflicting terms of a Customer’s form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h. Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Feedback. If Customer provides feedback or suggestions about the Service, then Qliktag (and those it allows to use its technology) may use such information without obligation to Customer.
Last Revised 06-19-19.