Qrvey Evaluation Agreement
Last Revised: December 8, 2020 Ver: 01208
PLEASE READ THIS AGREEMENT CAREFULLY.
This Qrvey Evaluation Agreement is a legally binding contract between Qrvey, Inc., a Virginia corporation (“Qrvey”) with offices located at 8614 Westwood Center Dr., Suite 460, Vienna, VA 22182 USA and the other legal entity (“Customer”) named on ordering document that references this Qrvey Evaluation Agreement and that granted access to this Evaluation.
QRVEY PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY INSTALLING OR USING THE SOFTWARE, CUSTOMER AGREES TO (A) ACCEPT THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND SUCH PARTY TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, QRVEY WILL NOT AND DOES NOT LICENSE AND GRANT ANY EVALUATION USE OF THE SOFTWARE TO CUSTOMER AND CUSTOMER MUST NOT INSTALL OR USE THE SOFTWARE.
WHEREAS Qrvey has developed and offers the software described at https://qrvey.com/aws-analytics-platform (“Software”); and
WHEREAS Customer desires to evaluate the Software all in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the Parties agree as follows:
- Definitions. Qrvey and Customer collectively shall be referred to herein as the “Parties” and each individually as a “Party.” The following terms used in this Agreement shall have the meanings set forth in this Section 1.
“Affiliate” means any corporation or other entity that controls, is controlled by, or is under common control with a Party. A corporation or other entity shall be deemed to control another if it owns or controls directly or indirectly more than fifty percent (50%) of the voting stock or other ownership interest of the corporation or entity or has the right to direct the management of such entity.
“Agreement” means this Qrvey Evaluation Agreement and the attached Exhibits.
“Documentation” means all written materials provided by Qrvey in connection with the Software, such as user documentation and any succeeding changes thereto. The Documentation shall be considered a component of the Software.
- Evaluation of Software
- Evaluation Period. This Agreement shall commence as of the earliest date that Customer (i) agreed to the ordering document referencing this Agreement or (ii) first installed or used the Software, and unless earlier terminated as provided herein, shall continue for a period as specified in the order document (“Evaluation Period”). This Agreement and the Evaluation Period may only be extended by the written consent of Qrvey. The Evaluation Period and all authorized extensions, if any, shall collectively be referred to as the “Term”.
- Evaluation Authorization. During the Evaluation Period, Qrvey agrees to provide Customer with an evaluation license to the Software, consistent with the license grants set forth herein, at no charge to Customer, solely for evaluation purposes in Customer’s internal, non-production environment for non-commercial use, and such use shall be consistent with the provisions of this Agreement (the “Evaluation”).
- Software License Grant. Subject to the terms and conditions of this Agreement, Qrvey grants to Customer during the Evaluation Period a limited, non-exclusive, non-transferable evaluation license (with no right to sublicense) to use, execute, and copy the Software (but not create derivative works thereof) on computers or servers hosted by Amazon Web Services (“AWS”) under an agreement between AWS and Customer (unless an ordering document includes or references terms that indicates that the AWS agreement shall be paid for and managed by Qrvey) solely to test and evaluate the Software in an internal, non-production environment for non-commercial use (the “Software License”). The Software is provided in object code only and no license is given to the source code to the Software.
- Limitations on Use. Without the express written authorization from Qrvey , Customer shall not (nor through any third party): (i) use, copy, duplicate or reproduce all or any portion of the Software (including the Documentation) for any purpose other than as specified in this Agreement; (ii) decompile, disassemble, re-program, analyze, reverse engineer any of the Software (in whole or in part) or otherwise attempt to reconstruct, identify or discover any underlying ideas, underlying user interface techniques or algorithms, or source code, or disclose any of the foregoing (except to the extent such restriction is prohibited by law); (iii) except as expressly authorized herein, sell, rent, lease, license, sublicense or in any way redistribute any or all of the Software; (iv) use the Software to create a service bureau, timesharing arrangement, or application service provider; (v) modify, adapt, translate, prepare derivative works of all or any portion of the Software or attempt to do so; (vi) remove, obscure or alter Qrvey’s, its Affiliates, or its licensors’ product identification, copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Software or Documentation; (vii) permit the Software to be used, examined, reviewed or inspected by others, other than by Customer’s employees; (viii) 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; (ix) use the Software, Documentation or any information contained therein or otherwise provided by Qrvey or its licensors for the purposes of developing, or having developed, any products or services competitive with the Software; (x) 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. Customer shall not authorize, or acquiesce in, any other person engaging in any of the foregoing activities, or attempting to do so.
- US Government Rights. The Software, and any associated Documentation, has been developed entirely with private funds and is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Customer is the US Government or any contractor therefor, Customer shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, 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 licensees and their contractors.
- No License to Affiliates. Any and all Licenses are granted to Customer and not, by implication or otherwise, to any Affiliate of Customer.
- Reserved Rights. Qrvey reserves all rights not expressly granted under this Agreement.
- Maintenance and Support. Support for the Evaluation is handled via Qrvey’s Customer Support team at no charge to Customer during Qrvey’s normal business hours. Customer acknowledges that this Agreement does not confer upon Customer any rights to obtain updates or upgrades to the Software.
- Customer Obligations
- Installation. Unless an ordering document provides otherwise, Customer shall be responsible for the installation of the Software and any required third party software and equipment.
- No Liens on Software. Customer shall ensure that the Software does not become subject to any lien or encumbrance, and shall not use the Software as collateral for any transaction.
- Cooperation and Assistance. Customer 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 Customer. Customer will promptly notify Qrvey in sufficient detail of any defect, deficiency or error known to or discovered in the Software by Customer in sufficient detail to enable Qrvey to duplicate the condition.
- Export of Software. All Software, Documentation, deliverables, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with these laws and regulations and acknowledges that it has the responsibility to obtain any licenses to export, re-export, or import as may be required by law. Any delays attributable to Qrvey’s ability to secure appropriate export licenses or other required export documentation shall not be considered a breach of this Agreement. Qrvey makes no warranty that any such licenses or other authorizations will be granted and shall have no liability for Customer’s inability to obtain such licenses or other authorizations or for any violation by Customer of any applicable law or regulation.
- Intellectual Property Rights
- Qrvey Intellectual Property Rights. Title to the Software shall remain with Qrvey at all times during and after the Evaluation Period. Customer acknowledges and agrees that the intellectual property rights underlying the Software and Documentation (collectively, “Qrvey IP”) are owned by, and shall remain the sole property of Qrvey , its Affiliates, and their collective 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 , its Affiliates, and their collective licensors, and that Qrvey , its Affiliates, and their collective 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 Customer title or ownership of the Intellectual Property Rights underlying the Qrvey IP, but only a right of limited use in accordance with this Agreement. Customer 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 , its Affiliates, and their collective licensors.
- Suggestions. Many of Qrvey’s changes to user interfaces, features, functionality, and other aspects of the Software come as a result of suggestions made by customers and partners, whether in the form of suggestions, enhancement requests, recommendations, or other feedback, with regard to the Software (all of the foregoing, collectively, “Suggestions”). All customers benefit from Qrvey incorporating Suggestions in future releases of the Software. Customer grants to Qrvey an irrevocable, worldwide, royalty-free, perpetual license to use as Qrvey deems appropriate any Suggestions that Customer , or any person or entity under the direction or control of Customer, provides to Qrvey, to incorporate such Suggestions in any form into the Software (or any other products or services), and to exercise any other rights with respect to such Suggestions. Qrvey shall be entitled to use any Suggestions without restriction and without obligation to Customer or any third party.
- Survival of Intellectual Property Rights. This Section 6 (Intellectual Property Rights) shall survive any termination or expiration of this Agreement.
- “Confidential Information” means all such information, material and data received by one Party (the “Receiving Party“) from the other Party (the “Disclosing Party“) or its clients, whether disclosed in writing or verbally, (i) that is labeled or designated in writing as confidential or proprietary, (ii) which Receiving Party is advised is proprietary or confidential or (iii) 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 shall not include information which (a) is or becomes publicly available through no act or omission of the Receiving Party; (b) is rightfully received from a third party without an obligation of confidence; (c) is independently developed by the Receiving Party without reference to Confidential Information; or (d) is required to be disclosed in accordance with a judicial or governmental order or decree, provided that the Receiving Party provides prompt notice of the order or decree to the Disclosing Party and reasonably cooperates with the Disclosing Party to limit the disclosure and use of the Confidential Information.
- Use of Confidential Information. 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 trade secrets and personally identifiable data shall 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 its employees or agents whose use of or access to the Confidential Information is necessary to carry out the intent of this Agreement. The Receiving Party shall, by appropriate means, prevent the unauthorized disclosure, publication, display or use of any Confidential Information. Without limiting the generality of the foregoing, the Receiving Party shall require all employees, agents or contractors who shall have access to the Confidential Information to execute, prior to such access, a non-disclosure agreement providing for at least the same protection of the Confidential Information as is provided for by this Section.
- 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 its possession. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the Receiving Party in any form or for any reason.
- WARRANTY DISCLAIMER. QRVEY PROVIDES THE SOFTWARE ON AN “AS IS” BASIS AND THE PARTIES EXPRESSLY DISCLAIM, ALL 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, QRVEY SPECIFICALLY DISCLAIMS: (I) THE SUITABILITY OF THE SOFTWARE FOR USE IN MISSION-CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS; AND (II) ANY ILLEGAL ACTIVITY BY THE CUSTOMER OR AN END USER.
- Indemnification by Customer . Customer (the “Indemnifying Party”) shall defend, indemnify and hold harmless Qrvey and its Affiliates, and each of its officers, directors, owners, employees, agents or licensors (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: (i) use of the Software (except to the extent that the Loss is caused by actions or inactions of Qrvey); (ii) any resale or distribution of the Software that is not authorized under this Agreement.
- Indemnity Procedure. The Indemnified Party shall provide the Indemnifying Party with (i) prompt written notice of any claims under this Section 9 for which it seeks indemnification hereunder; (ii) full information and assistance in settling and/or defending the claims; and (iii) full authority and control of the defense and/or settlement of any such claims.
- Exclusive Remedy for Indemnification. The remedies set forth in this Section 9 (Indemnification) shall be the exclusive remedies of the Parties with reference to any claims for indemnification.
- Survival for Indemnification. The provisions of this Section 9 (Indemnification) shall survive any termination of this Agreement.
- LIMITATION OF LIABILITY
- 10.1.LIMITATION ON INDIRECT DAMAGES. NEITHER OF THE PARTIES NOR THEIR LICENSORS SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, ECONOMIC, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS 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. BOTH PARTIES SHALL BE LIABLE TO THE OTHER FOR DIRECT DAMAGES ONLY, IN AN AMOUNT NOT TO EXCEED US$10,000 IN THE AGGREGATE FOR ALL CLAIMS.
- 10.3.Applicability and Survival of Limitations. The foregoing limitations of liability shall not apply in case of death, personal injury or any matter for which liability may not be excluded or limited at law. The provisions of this Section 10 (Limitation of Liability) shall survive any termination of this Agreement.
- 11.1.Rights and Obligations Upon Termination. Upon expiration or termination of this Agreement by either Party, all Licenses granted hereunder shall terminate immediately.
- General Provisions
- 12.1.Publicity. Neither Party shall issue a press release or make any similar public announcement without the other Party’s prior written consent to the specific language and intended distribution of such press release or announcement.
- 12.2.Assignment. This Agreement and the rights and obligations hereunder may not be assigned, delegated, sublicensed or transferred without the prior written consent of the other Party.
- 12.3.Compliance with Laws. Each Party agrees to abide by all 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.
- 12.4.Governing Law and Venue. This Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to its conflicts or choice of law principles. Any and all claims arising out of or relating to this Agreement or the transactions contemplated hereby shall be brought in the state courts located in Fairfax County, Virginia, USA or the federal courts located in the Eastern District of Virginia. Each Party hereby submits to and accepts the jurisdiction of such courts for purposes of all legal proceedings and irrevocably waives any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. The Parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The prevailing Party in any action hereupon will be entitled to recover, in addition to any other award, reasonable related costs, expenses, and legal costs and fees.
- 12.5.Miscellaneous Provisions. A failure or delay of either Party to this Agreement to enforce any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions. In the event that any provision of this Agreement shall be held to be invalid, the remaining provisions of this Agreement shall be unimpaired and the invalid provisions shall be replaced by a mutually acceptable provision. This Agreement may be updated from time-to-time by Qrvey by its posting changes thereto on its website, located at https://qrvey.com/terms-of-service/. The Parties agree that where the context of any provision indicates an intent that it shall survive the termination of this Agreement, then it shall so survive. 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 shall 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 injunctive and other equitable relief. This Agreement constitutes the entire understanding between the Parties concerning the subject matter hereof and supersedes all prior discussions, agreements and representations, whether oral or written and whether or not executed by the Parties. All notices required hereunder shall be in writing and transmitted to Qrvey at its address as first set forth in this Agreement, and to Customer’s address as set forth in the ordering document unless either Party provides written notice to the other Party of a different address. Notices shall be effective upon the date of confirmed delivery or at such time as delivery is refused by addressee upon presentation. The preamble hereto shall form an integral part of this Agreement. 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.