BY INDICATING PARTNER’S ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SOFTWARE AND/OR SUPPORT SERVICES, PARTNER ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF A PARTY IS ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH PARTY REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT, AND PARTNER AS USED HEREIN SHALL MEAN SUCH COMPANY OR LEGAL ENTITY. IF PARTNER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, PARTNER MAY NOT USE THE SOFTWARE AND/OR SUPPORT SERVICES. PARTNER AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY THEM.
IF A PARTY IS ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH PARTY REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT, AND PARTNER AS USED HEREIN SHALL MEAN SUCH COMPANY OR LEGAL ENTITY.
IF PARTNER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, PARTNER MAY NOT USE THE SOFTWARE AND/OR SUPPORT SERVICES. PARTNER AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY THEM.
ONLINE OEM AGREEMENT
This Online OEM Agreement (“OOA”) is entered into by and between Qrvey, Inc. (“Qrvey”) and the entity entering into an Ordering Document (“Partner”)(each referred to as a “Party” and collectively as the “Parties”).
This OOA incorporates any Exhibits, amendment, addendums, Ordering Documents, SOWs, and/or any other documents incorporated herein by reference (collectively, this “Agreement”). In the event of any conflict or ambiguity between this OOA and any Exhibit, Ordering Document or other incorporated material(s), this OOA shall control: i) unless expressly amended or supplemented by the Exhibit, Ordering Document or other incorporated material; and ii) solely to resolve such conflict or ambiguity.
The “Effective Date” of this OOA is the date which is the effective date of the first Ordering Document referencing this Agreement. This Agreement will govern Partner’s initial purchase on the Effective Date as well as any future purchases made by Partner through an Ordering Document that references this OOA.
From time to time, Qrvey may modify this Agreement. Unless otherwise specified by Qrvey, changes become effective for Partner upon renewal of the then-current Subscription Term or upon the effective date of a new Ordering Document after the updated version of this Agreement goes into effect. Qrvey will use reasonable efforts to notify Partner of modifications and renewals through communications via email, or other means. Partner may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event continued use of the Software and/or Support Services after the updated version of this Agreement goes into effect will constitute Partner’s acceptance of such updated version of this Agreement. Each Party agree that email shall be sufficient for the purpose of obtaining written consent and written approval from the other, if required by and as specified in this Agreement. Other than as set forth herein, neither the course of conduct between the Parties nor trade usage will act to modify or alter the provisions of this Agreement.
The following terms used in this Agreement shall have the meanings set forth in Exhibit A, unless defined elsewhere in this Agreement. Unless specifically stated otherwise, capitalized terms used in Exhibits and Ordering Documents shall have the meaning set forth in this Agreement. Section or Exhibit shall mean a section or exhibit of this Agreement. The singular meaning of a defined term shall have the same meaning as the plural meaning and vice versa.
2. LICENSES AND RESTRICTIONS
Subject to the terms and conditions of this Agreement, Qrvey grants to Partner, and Partner accepts, strictly during the License Term of this Agreement and subject to Partner’s ongoing payment of the License Fees, the following licenses set forth in this Section 2 (Licenses and Restrictions) (collectively, the “Licenses”):
2.1 Software License Grant. Qrvey grants Partner a limited, non-transferable, non-exclusive license to:
(a) internally use the Software for the sole purpose of embedding the Software into Partner Applications;
(b) sublicense to their End-Customers a right to use and execute the Software; provided, that, (i) the Software is licensed to End-Customers only as embedded into Partner Applications; (ii) such sublicenses shall be for the purposes of allowing End-Customers to use the Licensed Application as a SaaS solution; (iii) the Licensed Application, as a SaaS solution, is licensed to End-Customers pursuant to the terms of an ECLA, as set forth in Section 2.2 below;
(c) internally use the Software for the purpose of providing support and training to End-Customers; provided, that, such support and training are consistent with the terms and conditions of this Agreement and any Ordering Documents;
(d) internally use the Training Materials and create derivative works, for the purpose of (i) allowing Partner’s personnel to understand the Software in order to embed the Software into Partner Application and (ii) how the End-Customer will utilize the Licensed Application;
(e) use of the Marketing Materials to create derivative works, for the purpose of promoting the Software as embedded in Partner Applications to prospective End-Customers of Partner; and
(f) use the Content to create derivative works for the purpose of providing such Content to their End-Customers, as applicable.
For purposes of clarification, Partner shall have no right to sublicense to any third party any of the rights granted to Partner in Section 2.1(b).
Pursuant to the license granted in Section 2.1(b), Partner’s brand may be displayed exclusively on the Licensed Application, without references or attributions provided to Qrvey with regard to the Software, Content, Documentation, derivative Training Materials, or derivative Qrvey Marketing Materials. Notwithstanding the foregoing, Partner shall comply with Section 2.3(f).
Pursuant to the licenses granted in Sections 2.1(d), (e) and (f), Partner shall be responsible and liable for any derivative works created of such materials, and any errors or inaccuracies included in such derivative works.
The Open Source Software included in the Software is provided to Partner under separate licenses. In the event of a conflict between the licenses set forth in this Agreement and any separate licenses for the Open Source Software, the separate licenses will prevail with respect to that portion of the Software that is subject to such separate licenses.
Qrvey reserves all rights not expressly granted under this Agreement.
2.2 End-Customer License Agreement. Partner’s sublicensing of the Software as embedded into Partner Applications to End-Customers shall be subject to the terms and conditions of an ECLA, which will include the suggested minimum terms and conditions found at https://qrvey.com/end-customer-license-agreement/ (or its successor URL). Partner shall be responsible and liable for any action or inaction by End-Customers due to any differences between the suggested minimum terms and conditions of an ECLA and Partner’s terms and conditions with End-Customers.
2.3 Restrictions on Use. Without the express written authorization from Qrvey, Partner shall not (nor authorize, allow or permit through any third party) to:
(a) use, copy, duplicate, reproduce or publish the Software, in whole or in part, or Work Product resulting from the Support Services for any purpose other than as expressly authorized in this Agreement and Ordering Documents;
(b) decompile, disassemble, re-program, analyze, or reverse engineer, or otherwise attempt to reconstruct, identify, or discover any underlying ideas, underlying user interface techniques, or algorithms, or Source Code, or disclose the Software (in whole or in part), or Work Product resulting from the Support Services (except to the extent such restriction is prohibited by law);
(c) except as expressly authorized herein, sell, rent, lease, license, sublicense, or in any way redistribute the Software, in whole or in part;
(d) license, sublicense, sell, rent, lease, distribute, or publish the Software, in whole or in part, as a stand-alone product (i.e. separate from Partner Applications);
(e) modify, adapt, translate, or prepare derivative works of the Software, in whole or in part, t, or attempt to do so for any purpose other than as specified in this Agreement;
(f) remove, obscure, disable, suppress, or alter Qrvey’s or their licensors’ product identification, copyright notices, trademarks, trade names, logos, trade dress, or other proprietary rights notices affixed to or contained within the (i) Software (including the component: Maintenance Releases); and (ii) Work Product resulting from Support Services;
(g) except as otherwise set forth herein, permit the Software (in whole or in part) to be used, examined, reviewed, or inspected by third parties;
(h) disclose the results of any benchmark or evaluation of the Software to any third party (whether or not obtained with Qrvey’s assistance) without Qrvey’s prior express written consent;
(i) use the Software or any information contained therein or otherwise provided by Qrvey or their licensors for the purposes of developing, or having developed, any products or services competitive with the Software; and
(j) incorporate, link, or distribute the Software with any code or software licensed under the GNU General Public License (“GPL”), Lesser General Public License (“LGPL”), Mozilla, or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Software (or any modifications thereto) to become subject to the terms of the GPL, LGPL, Mozilla, or such other open source license, including, but not limited to, license obligations requiring that any of the Software be disclosed or distributed as free Source Code or be subject to mandatory redistribution, contrary to the terms and conditions set forth in this Agreement.
3. SUPPORT SERVICES AND MAINTENANCE
3.1 Support Services. In consideration for Partner’s ongoing payment of the Services Fees for Support Services, Qrvey shall make Support Services available to Partner in accordance with the terms and conditions described in the Support Services Description and Ordering Document. Partner’s use and access to Work Product resulting from the Support Services is subject to the same rights, obligations, and limitations set forth in the Licenses for Software granted hereunder.
3.2 Support to End-Customers. Qrvey shall only be required to provide Support Services directly to Partner as set forth in the Support Services Description. Unless an Ordering Document provides otherwise, Partner shall provide first tier support to End-Customers.
3.3 Maintenance Releases. Provided that Partner is current with their payment of License Fees to Qrvey, Partner shall be entitled to receive Maintenance Releases, at no additional charge, when and as it is made generally available to other customers of Qrvey. Maintenance Releases will be considered integral to the Software for purposes of this Agreement from the time such Maintenance Releases are first delivered to Partner. Partner’s use and access to Maintenance Releases is subject to the same rights, obligations, and limitations set forth in the Licenses for Software granted hereunder.
3.4 Delays in Performance. Qrvey will not be responsible for implementation delays or service degradations that are not within their control including, without limitation, implementation delays, or service degradations caused by Partner. Qrvey and Partner shall each perform their respective obligations and carry out their responsibilities as described in Ordering Documents and this Agreement.
4. PARTNER OBLIGATIONS
4.1 Cooperation and Assistance. Partner shall provide Qrvey with access to technical personnel and information in connection with performance of the Software and will furnish all information and assistance required to be provided by Partner under Ordering Documents. Partner will promptly notify Qrvey in sufficient detail of any defect, deficiency, or error known to or discovered in the Software by Partner and End-Customers in sufficient detail to enable Qrvey to duplicate the condition.
4.2 Export Compliance. Partner acknowledges that the Software is subject to U.S. export control laws, including the U.S. Export Administration Regulations, administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), and the sanctions regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), and may be subject to export or import regulations in other countries (collectively, the “Export Laws”). Partner agrees to comply with all applicable Export Laws in their use of the Software and will not export, re-export, transfer, or provide access to the Software to any person or entity that is (i) located, organized, or resident in any jurisdiction that is subject to a U.S. trade embargo (currently, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine) (each a “Sanctioned Country”); (ii) identified on any export- or sanctions-related restricted party list, including those maintained by OFAC or BIS (collectively, the “Restricted Party Lists”); or (iii) otherwise ineligible to receive the Software under applicable Export Laws. Neither Partner nor any of Partner’s actual or beneficial owners is located, organized, or resident in a Sanctioned Country or identified on any Restricted Party List.
5. FEES AND PAYMENT TERMS
5.1 License Fees. Partner shall pay to Qrvey the License Fees for use of the Software on a subscription basis as set forth in Ordering Documents.
5.2 Services Fees. Partner shall pay to Qrvey the Services Fees for Support Services as set forth in Ordering Documents.
5.3 Currency. Unless specified otherwise in Ordering Documents, all License Fees, Services Fees, and amounts due hereunder will be in United States currency.
5.4 Taxes. Taxes are not included in the License Fees or Services Fees. Partner shall pay all applicable sales, customs, duty, use, property, withholding, value-added, excise, and any other taxes or duties imposed under the authority of any foreign, federal, state, or local taxing jurisdiction, except any tax assessed upon Qrvey’s net income. Partner shall not reduce any fees or charges owed to Qrvey as a result of any such taxes or duties. If Partner claims exemption from any tax, Partner shall furnish Qrvey with a valid reseller exemption certificate issued by each taxing jurisdiction or entity where such certificate is required as a condition for the avoidance of applicable sales or use taxes covering any Software to be licensed on a subscription basis under this Agreement or any other appropriate exemption certificates and such other documents as Qrvey reasonably requires.
5.5 Payment Terms. All payment terms are as specified in applicable Ordering Documents or Qrvey invoices (the “Due Date”). Qrvey may provide invoices electronically via email to Partner. This Agreement will not be modified or superseded by any terms or conditions included in any purchase order or other business form.
5.6 Failure to Pay. In the event that Partner does not make payment of any fees, other charges, or amounts (including, but not limited to, License Fees, Services Fees, Taxes) to Qrvey within (a) fifteen (15) days of when the amounts are due, then Qrvey will have the right to suspend Partner’s use of the Software; and (b) thirty (30) days of when the amounts are due, then Qrvey will have the right to terminate this Agreement pursuant to Section 11.2.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Qrvey Intellectual Property Rights. Partner acknowledges and agrees that the Qrvey Software (including the component: Maintenance Releases), Work Product resulting from Support Services, Content, Documentation, Training Materials, Qrvey Marketing Materials, and Qrvey’s Marks (collectively, “Qrvey IP”) are owned by, and will remain the sole property of Qrvey and their licensors, that the Qrvey IP contains, embodies and is based upon worldwide patented or patentable inventions, trade secrets, copyrights, and other intellectual property rights (collectively, “Intellectual Property Rights”) owned or licensed by Qrvey and their licensors, and that Qrvey and their licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the Qrvey IP worldwide including, without limitation, any derivative works. This Agreement does not convey to Partner title or ownership of the Intellectual Property Rights underlying the Qrvey IP, but only a right of limited use and distribution in accordance with this Agreement. Partner acknowledges that the Qrvey IP provided by Qrvey pursuant to this Agreement is entitled to protection under applicable copyright and other intellectual property laws and constitute valuable assets, trade secrets, and proprietary rights of Qrvey or their licensors.
6.2 Partner Intellectual Property Rights. Qrvey acknowledges and agrees that all intellectual property provided by Partner to Qrvey hereunder, including Partner Data, Partner’s Marks, Partner Application, Licensed Applications (excluding any Qrvey IP embedded within the Licensed Applications) (collectively, “Partner IP”) are owned by, and will remain the sole property of Partner and their licensors, that the Partner IP contains, embodies and is based upon worldwide Intellectual Property Rights owned or licensed by Partner and their licensors, and that Partner and their licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the Partner IP worldwide including, without limitation, any derivative works. This Agreement does not convey to Qrvey title or ownership of the Intellectual Property Rights underlying the Partner IP, but only a right of limited use in accordance with this Agreement. Qrvey acknowledges that the Partner IP provided by Partner pursuant to this Agreement is entitled to protection under applicable copyright and other intellectual property laws and constitute valuable assets, trade secrets, and proprietary rights of Partner or their licensors.
7.1 Confidential Information. Confidential Information” means all such information, material, and data received by one Party (the “Receiving Party“) from the other Party (the “Disclosing Party“) or their clients, whether disclosed in writing or verbally, (a) that is labeled or designated in writing as confidential or proprietary, (b) which Receiving Party is advised is proprietary or confidential or (c) which, in view of the nature of such information or the circumstances of its disclosure, Receiving Party knows or reasonably should know is confidential or proprietary. Confidential Information includes the terms and conditions of this Agreement. Confidential Information will not include information which (x) is or becomes publicly available through no act or omission of the Receiving Party; (y) is rightfully received from a third party without an obligation of confidence; (z) is independently developed by the Receiving Party without use of, access to or reference to Confidential Information.
7.2 Authorized Disclosures. Receiving Party may disclose the Disclosing Party’s Confidential Information if and only to the extent that such disclosure is required by administrative, judicial, or governmental authority or order; provided, that, the Receiving Party provides the Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose their own objection to the disclosure (e.g., by protective order or other appropriate relief). Receiving Party agrees to cooperate with the Disclosing Party, at the Disclosing Party’s request and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Disclosing Party’s Confidential Information being disclosed.
7.3 Use of Confidential Information. The Receiving Party will (a) safeguard the Disclosing Party’s Confidential Information using the same degree of care as it uses to safeguard their own confidential and proprietary information of a like nature; provided, that, the Receiving Party shall never use less than a reasonable degree of care; (b) prevent the unauthorized disclosure, publication, display, or use of any Confidential Information; and (c) report any unauthorized disclosure or use of the Disclosing Party’s Confidential Information, and will take any further actions that are reasonably requested by the Disclosing Party to prevent or remedy any such violation. The Receiving Party will hold any Confidential Information in strict confidence for a period of three (3) years from termination of this Agreement, except that the obligation of the Receiving Party to maintain the confidentiality of the Qrvey Software, trade secrets and personally identifiable data will survive indefinitely. The Receiving Party will use such Confidential Information only in accordance with the terms of this Agreement. The Receiving Party shall limit the use of, and access to, the Confidential Information to their employees, consultants/contractors, advisors (including financial and legal), and agents whose use of or access to the Confidential Information is necessary to carry out the intent of this Agreement. Without limiting the generality of the foregoing, prior to access to or disclosure of any Confidential Information, the Receiving Party shall require all employees, consultants/contractors, advisors, and agents to sign an agreement with Receiving Party that includes confidentiality provisions at least as protective as the terms of this Section 7 (Confidentiality) or have a duty to keep such information confidential. The Receiving Party shall be responsible and liable for the actions of their consultants/contractors, advisors, and agents, including any breach of this Agreement.
7.4 Use of Partner Data. Qrvey will only use Partner Data in connection with the Software, solely for the purposes of fulfilling their obligations under this Agreement. No other use of Partner Data is authorized under this Agreement and all Partner Data will be considered the Confidential Information of Partner.
7.5 Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, the Receiving Party shall promptly return to the Disclosing Party, or, if requested, destroy all copies of the Disclosing Party’s Confidential Information in their possession. All copies, notes, or other derivative material relating to the Confidential Information will be promptly retrieved or destroyed, as agreed, and no such material will be retained or used by the Receiving Party in any form or for any reason, unless required by law.
8. REPRESENTATIONS, WARRANTIES, COVENANTS, AND DISCLAIMERS
8.1 Mutual Representations, Warranties, and Covenants. Each Party represents, warrants, and covenants to the other Party that they:
(a) have and will have the full corporate or organizational power to enter into and perform their obligations under this Agreement;
(b) have and will have all licenses, approvals, registrations, permits, and certifications required under Applicable Law to conduct their business, including without limitation all necessary business licenses, tax registrations, and import/export licenses in the performance of their obligations under this Agreement;
c) have and will have authorization by all necessary corporate and/or organizational action to execute and performance their obligations under this Agreement;
(d) are not and will not be in breach of any Applicable Law and/or regulation in the performance of their obligations under this Agreement;
(e) have and will be in compliance with all federal, state, local, and privacy laws, ordinances, and regulations in performing their obligations as set forth in this Agreement;
(f) they are not and will not be included on any list of entities maintained and updated by the BIS and OFAC to whom the export of certain types of software is prohibited by United States laws; and
(g) they are not, nor are any of their personnel, and they will not be, nor will any of their personnel be on any list of entities or individuals maintained and updated by the BIS and OFAC to whom the export of certain software is prohibited by United States laws.
8.2 Partner Warranties.
(a) Partner warrants that it is the owner of, or otherwise has all necessary authority or consent to provide to Qrvey, all Partner Data.
(b) Partner shall be responsible and liable for any warranties made by Partner regarding the Software and Support Services that are greater than the warranties set forth in this Section 8.
8.3 Software Warranties. Provided that Partner is current with payment of the License Fees to Qrvey and subject to the conditions and exclusions set forth in Section 8.4 (Conditions and Exclusions for Software Warranty), Qrvey warrants that the Software, as delivered by Qrvey to Partner, will function substantially in accordance with the Software Specifications. Partner’s sole remedy for any claims under this Section 8.3 will be that Qrvey will use commercially reasonable efforts to correct such failures, at no charge to Partner. If, after a reasonable opportunity to correct or modify the Software and solely at Qrvey’s discretion, Qrvey may issue a refund to Partner of any pre-paid and unused License Fees for the then-current License Term, and the Licenses for the Software will terminate. Qrvey shall provide such warranty remedy services remotely.
8.4 Conditions and Exclusions for Software Warranty. The Software must be operated on hardware and operating conditions that meet the requirements set forth by Qrvey in the Specifications (collectively, the “Operating Environment”). Qrvey does not warrant the Software against material deviations in performance from the Specifications or claims of infringement caused by: (a) modifications made to the Software or any portion of it by anyone other than Qrvey; (b) the combination, operation, or use of the Software with any other software or equipment other than the Operating Environment specifically authorized by Qrvey; (c) Partner’s failure to use any new or corrected versions of the Software made available by Qrvey; or (d) Issues Outside Qrvey’s Control. For purposes of this Section 8.4, “Issues Outside Qrvey’s Control” means issues created or contributed to by: (x) events of Force Majeure; (y) third party software or hardware deployed within the Operating Environment that is not specified in the Specifications; or (z) configurations of the Software not authorized in the Documentation or Specifications.
8.5 WARRANTY DISCLAIMER. SUBJECT ONLY TO ANY WARRANTY RIGHTS THAT PARTNER MAY HAVE UNDER THIS AGREEMENT, THE OPEN SOURCE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND WITH ALL FAULTS AND DEFECTS. THE FOREGOING WARRANTIES ARE IN LIEU OF, AND THE PARTIES EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. QRVEY SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
9.1 Indemnification by Partner. Partner (the “Indemnifying Party”) shall defend and indemnify Qrvey, and each of their officers, directors, owners, employees or agents (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against all third party actions, suits, losses, liabilities, claims, expenses, damages, and costs of every kind and description including reasonable legal fees (collectively, “Losses“) arising out of or in connection with any one or more of the following: (a) any use of the Licensed Applications (except to the extent that the Loss is caused by the Software); (b) any use of the Software that is outside of the use of the Software as set forth in the Specifications; (c) claims that Partner IP infringes any trademark, patent, copyright, or misappropriates any trade secret (an “IP Claim”); (d) Partner’s breach of the warranty contained in Section 8.2(a) above; (e) Partner’s failure to meet regulatory requirements or failure to obtain any necessary governmental approvals or licenses; (f) any resale or distribution of the Software that is not authorized under this Agreement; (g) agreements between Partner and End-Customers (unless such Loss stems from Qrvey’s breach of this Agreement); (h) a statement or representation regarding the Software that is not reasonably supported by the Qrvey Marketing Materials, the Specifications, or otherwise provided in writing or approved in writing by Qrvey; (i) any Loss stemming from breach or violation of the ECLA (unless such Loss stems from Qrvey’s breach of this Agreement); (j) the gross negligence or willful acts or omissions of Partner; (k) gross negligence or willful acts or omissions of End-Customers; (l) the unfair or deceptive acts or practices of Partner; (m) the unfair or deceptive acts or practices of End-Customers; and (n) breach by Partner of any of the representations and warranties, as set forth in Section 8 (Warranties and Disclaimers) ; (o) breach by Partner of their obligations under Section 12 (Foreign Corrupt Practices Act); and (o) breach by Partner of any other Applicable Law.
9.2 Indemnification by Qrvey. Qrvey (the “Indemnifying Party”) shall defend and indemnify Partner and their officers and directors, owners, employees, agents, or vendors (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”) from and against all third party actions, suits, losses, liabilities, claims, expenses, damages, and costs of every kind and description including reasonable legal fees (collectively, “Losses“) caused by or resulting from any one or more of the following: (a) the Software provided by Qrvey under this Agreement specifically causes an infringement of a patent, trademark, copyright or other proprietary right of such third party that is enforceable (collectively the “IP Claim”), (b) the gross negligent or willful acts or omissions of Qrvey; (c) the unfair or deceptive acts or practices of Qrvey; (d) breach by Qrvey of any of the representations and warranties, as set forth in Section 8 (Warranties and Disclaimers); and (e) breach by Qrvey of any Applicable Law.
9.3 Indemnity Exclusions. Qrvey’s obligations in Section 9.2 shall not apply to: (a) any costs or expenses incurred by Partner without Qrvey’s prior written authorization; (b) designs, instructions, data, materials, or any other intellectual property provided by Partner or End-Customers; (c) infringement caused from unauthorized modifications to the Software; (d) Partner’s combination of the Software with other products or services and the infringement would have been avoided but for such combination; (e) Qrvey’s implementation of a Partner’s design or modification where infringement is due to such specified design or modification; (f) Partner’s or End-Customers’ use of the Software other than in accordance with the Specifications; or (g) Partner’s failure to install any available Maintenance Releases as provided by Qrvey.
9.4 Indemnity Procedure. The Indemnified Party shall provide the Indemnifying Party with (a) prompt written notice of any claims under this Section 9 (Indemnification) for which it seeks indemnification hereunder (such that the Indemnifying Party suffers no prejudice of their rights); (b) full information and assistance in settling and/or defending the claims; and (c) full authority and control of the defense and/or settlement of any such claims. The Indemnifying Party shall not consent to any agreements or admit any liability without consent from the Indemnified Party. The Indemnified Party may retain their own legal counsel at their own cost.
9.5 IP Claim Infringement Remedy. In the event of an IP Claim, the Indemnifying Party shall, at Indemnifying Party’s option and at no expense to the Indemnified Party: (a) by license or other release from claim of infringement, obtain for the Indemnified Party any rights that it has under this Agreement to the product or service in question; (b) substitute an equivalent non-infringing product or service reasonably acceptable to the Indemnified Party, which meets the Specifications, and extend this indemnity thereto; or (c) modify the product or service to make it non-infringing but continue to meet the Specifications therefore, and extend this indemnity thereto.
9.6 Exclusive Remedy for Indemnification. The remedies set forth in this Section 9 (Indemnification) will be the exclusive remedies of the Parties with reference to any claims for indemnification and IP Claims.
10. LIMITATION OF LIABILITY
10.1 LIMITATION ON INDIRECT DAMAGES. NEITHER OF THE PARTIES SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, PUNITIVE, CONSEQUENTIAL, ECONOMIC, SPECIAL, INCIDENTAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, DAMAGES CAUSED BY DELAYS, INABILITY TO USE THE SOFTWARE; INTERRUPTION, LOSS OF SERVICES, GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, SHUTDOWN OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO EITHER PARTY OR THEIR LICENSORS.
10.2 LIMITATION ON DIRECT DAMAGES. EXCEPT FOR LIABILITY ARISING FROM ANY ONE OR MORE OF THE FOLLOWING: (A) EITHER PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY); (B) PARTNER’S BREACH OF SECTION 2 (LICENSES AND RESTRICTIONS); (C) PARTNER’S BREACH OF SECTION 5 (PAYMENT TERMS); (D) END-CUSTOMER’S BREACH OF THE ECLA; (E) EITHER PARTY’S BREACH OF AND/OR OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION); (F) EITHER PARTY’S MALICIOUS OR WILLFUL MISCONDUCT, (G) EITHER PARTY’S GROSS NEGLIGENCE, AND (H) EITHER PARTY’S FRAUD, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER ANY AND ALL CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED THE FEES PAID BY PARTNER TO QRVEY DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FROM WHEN THE CLAIM AROSE.
10.3 BASIS FOR THE BARGAIN. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS FOR THE BARGAIN BETWEEN THE PARTIES AND THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS.
11. TERM AND TERMINATION
11.1 Term. This Agreement will remain in effect until terminated in accordance with its terms.
11.2 Termination for Convenience. After the initial License Term or any Renewal License Term, as applicable, either Party may terminate this Agreement upon providing the other Party with ten (10) business days written notice. For purposes of clarification, if the Services Term has not expired, any termination of the Agreement will include the termination of the Support Services.
11.3 Termination For Breach. A non-breaching Party may terminate this Agreement for cause by written notice to breaching Party upon the occurrence of any of the following events: (a) the material breach by breaching Party of any term, provision, representation or warranty of this Agreement that remains uncured thirty (30) days after the non-breaching Party provides written notice thereof; (b) a material breach of any of their intellectual property or confidentiality obligations; or (c) a Party becomes insolvent or subject to any proceeding under the federal bankruptcy laws or other similar laws for the protection of creditors, and such event continues for ninety (90) days after the non-breaching Party provides written notice thereof.
11.4 Obligation Upon Termination. The termination or expiration of this Agreement will not release either Party from (a) any liability which has already accrued to the other Party hereto at the time of termination or expiration; (b) any liability which thereafter may accrue with respect to any act or omission prior to termination or expiration; or (c) any obligation which is expressly stated herein to survive termination or expiration.
11.5 Provisions Survive Termination. The following provisions of this Agreement will survive termination of this Agreement: Section 4.2 (Export Compliance); Section 5 (Fees and Payment Terms); Section 6 (Intellectual Property Rights); Section 7 Confidentiality; Section 8 (Representations, Warranties, Covenants, and Disclaimers); Section 9 (Indemnification); Section 10 (Limitation of Liability); Section 12 (Foreign Corrupt Practices Act); Sections 13.1 (Governing Law), 13.2 (Entire Agreement), 13.4 (Compliance with Laws), 13.5 (Waiver and Severable), 13.9 (Non-Solicitation); 13.10 (Use of Feedback), 13.11 (Audit Rights), 13.13 (Notices) (General); and any other provisions by their nature that would survive the termination of this Agreement.
12. FOREIGN CORRUPT PRACTICES ACT
Mindful of the principles of the United States Foreign Corrupt Practices Act (“FCPA”), the UK Anti-Terrorism, Crime & Security Act of 2001, the French Penal Code, the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions, and all related and implementing legislation applicable to this Agreement, and the fact that there may be other similar Applicable Laws and regulations in other jurisdictions, Partner and their subcontractors, consultants/contractors, sales representatives, agents, advisors, or other similar parties retained directly or indirectly (individually or collectively, “Reps”), acting in any capacity, will not make, authorize or offer any payment, or give, authorize the giving of, or offer anything of value, directly or indirectly, with respect hereto or otherwise:
(a) to any official or employee of any government, state-owned enterprise or international organization,
(b) to any person acting in an official capacity for or on behalf of any government, state-owned enterprise or international organization, or
(c) to any political party or to any person known to be a candidate for any office in any government,
in order to (i) influence any act or decision in any such person’s official capacity, (ii) induce any such person to violate his lawful duty, or (iii) induce any such person to use his influence with any government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, for the purpose of obtaining or retaining business or directing business to any person, or to secure any improper advantage. Further, without limiting the foregoing, Partner agrees to comply with the requirements of the FCPA and to similar regulations applicable in other applicable jurisdictions.
13. GENERAL PROVISIONS
13.1 Governing Law. This Agreement and any dispute or claim arising out of, resulting from, caused by and/or related to, its subject matter, or its formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the laws of the state of Delaware , without reference to its conflicts of laws and choice of law rules or principles, and any controlling United States federal laws. The Parties irrevocably agree that the federal and state courts located in Fairfax County, Virginia will have exclusive venue and jurisdiction to adjudicate and settle any dispute or claim arising out of, resulting from, caused by, and/or related to this Agreement, its subject matter, or its formation (including non-contractual disputes or claims). The United Nations Convention On Contracts for the International Sale of Goods does not apply to this Agreement.
13.2 Entire Agreement. This Agreement contains the full understanding of the Parties hereto with respect to the specific subject matter hereof and supersedes and cancels all other previous agreements, negotiations, commitments, discussions, and warranties, whether oral or in writing, with respect to such subject matter. The Parties have not relied on any statement, representation, warranty, or agreement of the other Party or of any other person on such Party’s behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement. Nothing in this Section 13.2 purports to limit or exclude any liability for fraud.
13.3 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, assumed, delegated, sublicensed, novated, or transferred without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign their rights and obligations under this Agreement, without written consent of the other Party, to an entity acquiring a Party through a change of control, merger, acquisition of all or substantially all of a Party’s assets; provided, that, the acquiring party agrees to comply with the terms and conditions of this Agreement. Subject to the foregoing sentence, this Agreement will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns. Any purported assignment, assumption, delegation, transfer, and/or novation of rights and/or obligations under this Agreement in violation of this Section 13.3 shall be null and void.
13.4 Compliance with Laws. Each Party agrees to abide by all applicable local, state, national, and international laws and regulations applicable to such Party’s performance under this Agreement, including, without limitation, all intellectual property and privacy laws. By granting Partner the Licenses set forth herein, Qrvey does not represent that to do so will be lawful in all cases and Partner assumes responsibility for complying with the laws of each jurisdiction in which it operates.
13.5 Waiver and Severable. A failure or delay of either Party to this Agreement to enforce any of the provisions of this Agreement will in no way be construed to be a waiver of such provisions. In the event that any provision of this Agreement will be held to be invalid, the remaining provisions of this Agreement will be unimpaired and the invalid provisions will be replaced by a mutually acceptable provision.
13.6 Force Majeure. Neither Party shall be liable to the other Party for any delay, nonperformance, loss or damage (other than for failure to pay any amount when due) because of reasons beyond their reasonable control including, but not limited to, acts of God, acts of government, floods, fires, earthquakes, pandemic outbreaks, civil unrest, acts of terror, strikes or other labor problems (other than those involving Qrvey employees), communication systems failures, internet service provider failures or delays, or denial of service attacks, war, riots, power failures, accidents in transportation or other causes beyond the reasonable control of the respective Party (“Force Majeure”). If a Force Majeure event lasts for sixty (60) calendar days in the aggregate, then a Party’s only remedies, at their option, will be to (a) terminate this Agreement, and/or (b) terminate any and all affected Ordering Documents.
13.7 Independent Entities. This Agreement will not create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. Except as set forth in this Agreement, neither Party has the right to make commitments of any kind for the other Party. Under no circumstances will any personnel of either Party be considered to be an employee or agent of the other Party. There are no intended third party beneficiaries of any provision of this Agreement.
13.8 Equitable Relief. Damages may be an inadequate remedy in the event of a breach by either Party to this Agreement and that any such breach by either Party may cause the other Party great and irreparable injury and damage. Accordingly, both Parties agree that the Party claiming breach will be entitled, without posting a bond or waiving any additional rights or remedies otherwise available to it at law or in equity or by statute, to seek injunctive and other equitable relief.
13.9 Non-Solicitation. To the extent permitted by Applicable Law, no member of either Party’s personnel shall during the Term of this Agreement and for one (1) year thereafter, without the prior written consent of the other Party, solicit, directly, the employment of any employee, former employee (separated less than six (6) months), or consultant or subcontractor of the other Party or hire any employee, former employee, or consultant or subcontractor of the other Party who has been involved in the negotiation, operation or performance under this Agreement or any amendment or extension thereof. Notwithstanding the foregoing, the provisions of this Section 13.9 shall not restrict or preclude a Party from making generalized searches for employees and consultants/subcontractors by the use of advertisements online or in the media, or by engaging search firms to engage in searches that are not targeted or focused on the other Party’s employees, former employees, consultants or subcontractors.
13.10 Use of Feedback. Partner hereby grants to Qrvey a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to use, modify, have modified, translate, have translated, reformat, have reformatted, license, sublicense, distribute, have distributed, disclose, duplicate, have duplicated, copy, have copied, and incorporate any Feedback into their Software and any other product of Qrvey. For purposes of this Section 13.10, “Feedback” means any comments, suggestions, concepts, ideas, or the like for improving, enhancing, or otherwise modifying Qrvey’s products or services, regardless of the method of communication.
13.11 Audit Rights. During the Term of this Agreement and for a period of two (2) years following the termination of this Agreement, Partner will maintain complete and accurate information, data, and records in connection with the Licenses granted to Partner hereunder and Partner’s compliance with their obligations under this Agreement (“Records”). Upon thirty (30) calendar days prior written notice to Partner, Qrvey may audit (or engage a third party to conduct an audit), at their own expense, such Records. Qrvey agrees not to audit Partner more than once per year during the Term of this Agreement. Partner will provide all assistance and cooperation during any audit. Should an audit reveal that Partner is not in compliance with one or more of their obligations under this Agreement, (a) Partner will pay for the audit; (b) Qrvey may terminate this Agreement, at their sole discretion, and (c) Qrvey may seek damages, if any.
13.12 Drafting Party. This Agreement will not be construed in favor of or against either Party solely on the basis of a Party’s drafting or participation in the drafting of any portion of this Agreement.
13.13 Notices. All notices required hereunder will be in writing and transmitted to the address for each Party as set forth in an Ordering Document. Notices will be effective upon the date of confirmed delivery or at such time as delivery is refused by addressee upon presentation. Email communications are acceptable methods of communication for any provision under this Agreement that requires the mutually written agreement of the Parties.
13.14 Headings and Translations. The headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions. In the event this Agreement is translated into any language other than the English language, the meanings contained in the English language version will control and be used in any interpretation or dispute related to this Agreement.
1.1 “Applicable Law(s)” means, with respect to any person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to such person. Applicable Law may include, but is not limited to, , which may include i) the European Union’s General Data Protection Regulation 2016/679 (the “GDPR”) and any applicable national legislation implementing or supplementing the GDPR; ii) the California Consumer Privacy Act of 2018 and California Privacy Rights Act; and iii) all other applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of personal data.
1.2 “Content” means any reports generated using the Software (including as embedded into Partner Applications) by Partner as a result of any queries Partner makes of Partner Data, including but not limited to, tables, graphs, charts.
1.3 “Documentation” means documentation made available by Qrvey to Partner, and any succeeding changes thereto.
1.4 “ECLA” means a license agreement that Partner will use when sublicensing the Licensed Applications to End-Customers.
1.5 “End-Customer” means a customer, client or end-user of Partner that obtains a right to use the Licensed Applications, as a software-as-a-service (“SaaS”) solution, pursuant to the terms and conditions of an ECLA. An End-Customer shall not include any entities that will resell or market the Software.
1.6 “Enterprise Managed Infrastructure” means a service provided by Qrvey to Partner to manage the AWS resources and the Software.
1.7 “Licensed Applications” means Partner Applications that embeds the Software.
1.8 “License Fees” means the recurring license fees and other recurring charges for use of the Software as set forth in an Ordering Document.
1.9 “License Term” means the term of the Licenses, which will be for a specified period of time, as set forth in the Ordering Document, unless otherwise agreed in writing by the Parties.
1.10 “Maintenance” means Qrvey provided Maintenance Releases that combines defect resolution and modifications to the existing core features of the Software.
1.11 “Maintenance Release” means releases of the Software that may include improvements in functionality, performance, bug fixes and upgrades to embedded or integrated components, including any associated Documentation. Maintenance Releases will be considered a component of the Software.
1.12 “Object Code” means the binary, machine readable and executable form of a computer software program.
1.13 “Open Source Software” means computer software, in Source Code form, made generally available at no charge by the copyright holder under a license which provides the right to modify and distribute the software for any purpose at no charge.
1.14 “Ordering Documents” means any document that places an order for Software, and/or Support Services under the terms of this Agreement, signed by both Parties.
1.15 “Partner Application” means applications developed by Partner, and as specified in the Ordering Documents.
1.16 “Partner Data” means the data of Partner, including any data provided in connection with use of the Software.
1.17 “Quickstart Service Package” means a service package offered by Qrvey to Partner which includes technical implementation assistance and Training Services.
1.18 “Qrvey Marketing Materials” means marketing materials that Qrvey prepares and uses to promote the Software.
1.19 “Qrvey Software” means the portion of the Software that was developed by Qrvey, and licensed to Partner herein, in Object Code only. The Qrvey Software includes the following component: Maintenance Releases. Qrvey Software does not include the Source Code.
1.20 “Renewal License Term” means renewal term of the Licenses, which will be for a specified period of time, as set forth in the Ordering Document, unless otherwise agreed in writing by the Parties.
1.21 “Services Fees” means the fees as set forth in Ordering Documents for Support Services.
1.22 “Services Term” means the term of the Support Services, which will be for a specified period of time, as set forth in the Ordering Document, unless otherwise agreed in writing by the Parties.
1.23 “Software” means the software, in Object Code and Source Code form, as described in the Software Description, and licensed as set forth herein, and must be hosted by Amazon Web Services (“AWS”) under an agreement between AWS and Partner. For purposes of clarification, Software will include the following components: Qrvey Software, and Open Source Software.
1.24 “Software Description” means the description of the Software as set forth at https://qrvey.com/aws-analytics-platform (or its successor URL) and will document the Specifications for Software licensed to Partner for embedding within Partner Applications that Partner intends to offer to their End-Customers as a software-as-a-service (“SaaS”) solution.
1.25 “Source Code” means the human readable form of a computer software program.
1.26 “Specifications” means, as appropriate (i) the specifications for the Software as set forth in the Software Description; and (ii) the specifications for the Support Services as set forth in the Support Description.
1.27 “Support Services” means the support provided to Partner by Qrvey as more specifically described in Section 3.1 (Support Services) and in the Support Services Description. Support Services also includes the Quickstart Service Package and Enterprise Managed Infrastructure.
1.28 “Support Services Description” means the description of the Support Services provided by Qrvey as set forth at https://qrvey.com/support-programs (or its successor URL).
1.29 “Training Services” means services provided by Qrvey and/or their authorized training consultants whereby Qrvey shall train Partner’s employees in accordance with the curriculum and other training materials (“Training Materials”) agreed to between the Parties in Ordering Documents. Training Services may be provided in a classroom setting, via video or audio conferences, online webinars, or other formats, all as mutually agreed to between the Parties in an Ordering Document. Training Services do not include any rights to any Training Materials or other written or electronic materials (whether online or otherwise) unless specifically set forth in Ordering Documents. Training Services will be performed at such locations and at such times as set forth in an Ordering Document.
1.30 “Work Product” means all programs, systems, processes, methods, formulas, algorithms, patterns, devices, compilations, databases, specifications, reports, analyses, drawings, designs, models, photographs, documentation, instructions, manuals, guides, ideas, concepts, techniques, data, research, technology, discoveries, improvements, materials, all writings, works of authorship, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice, all rights and claims related to the foregoing, and all printed, physical, and electronic copies, and other tangible embodiments thereof in any form, first produced or created.