Master Subscription Agreement
THIS MASTER SUBSCRIPTION AGREEMENT IS ENTERED INTO BY AND BETWEEN QSC, LLC (“QSC”) AND CUSTOMER. AND GOVERNS CUSTOMER’S ACCESS TO AND USE OF THE SERVICES.
IF CUSTOMER REGISTERS FOR, OR RECEIVES A FREE TRIAL OF THE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
CUSTOMER ACCEPTS THIS AGREEMENT TOGETHER WITH ITS EXHIBITS AND AGREES TO THIS AGREEMENT’S TERMS AND CONDITIONS AND MAKES THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN BY DOING ONE OR MORE OF THE FOLLOWING: CHECKING A BOX INDICATING CUSTOMER’S ACCEPTANCE; ORDERING, ACCESSING, AND/OR USING THE SERVICES SUCH AS BY CLICKING "ACCEPT" OR "SUBMIT" OR "ORDER NOW" OR “SUBSCRIBE NOW” OR "SIGN IN" (OR OTHER EQUIVALENTS) OR SIGNING BELOW. THIS AGREEMENT CAN ONLY BE ENTERED INTO BETWEEN QSC AND A CUSTOMER THAT IS A COMMERCIAL ENTERPRISE SUCH AS A COMPANY OR OTHER LEGAL ENTITY. THE PERSON ACTING ON BEHALF OF THE COMMERCIAL ENTERPRISE REPRESENTS THAT HE OR SHE HAS THE APPROPRIATE AUTHORITY TO ENTER INTO THIS AGREEMENT ON CUSTOMER’S BEHALF AND BIND CUSTOMER TO THIS AGREEMENT’S TERMS AND CONDITIONS AND MAKE THE REPRESENTATIONS AND WARRANTIES HEREIN. IF THE PERSON ACTING ON BEHALF OF THE COMMERCIAL ENTERPRISE DOES NOT HAVE SUCH AUTHORITY, OR THE COMMERCIAL ENTERPRISE DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT OR REPRESENTATIONS AND WARRANTIES, THE PERSON ACTING ON BEHALF OF THE COMMERCIAL ENTERPRISE MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES.
This Agreement is effective between Customer and QSC as of the date of Customer’s accepting this Agreement.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the ownership and/or voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“API” is defined in Section 2.7.
“Beta Period” is defined in Section 2.2.
“Beta Release” is defined in Section 2.2.
“Claims” is defined in 9.1.
“Confidential Information” is defined in Section 7.2.
“Customer” means the commercial enterprise such as a company or other legal entity that is a subscriber to the Services and on whose behalf the individual accepting this Agreement is acting.
“Customer Data” is defined in Section 3.2.
“Disclosing Party” is defined in Section 7.1.
“Dispute” is defined in Section 12.2.
"Documentation" means any manuals, descriptions, instructions, or other materials regarding the Services that QSC provides to Customer, which includes, but is not limited to, the online user guide(s) for the Services, the applicable QSC support policy, and QSC’s brand guidelines and policies, as updated by QSC from time to time.
“EEA” means the European Economic Area.
“EU” means the European Union.
“FAA” is defined in Section 12.4.1.
"Force Majeure" means all events beyond QSC’s reasonable control, including, for example, and without limitation, acts of war, acts of god, acts of government, earthquakes, floods, embargoes, riots, terrorism, sabotage, labor shortage or disputes (outside of QSC’s own employees), or failure or delay of the Internet, Internet service providers, disruptions in telecommunication networks and other electronic communications, non‐delivery or late delivery by suppliers, and force majeure on the part of suppliers.
“Free Trial” is defined in Section 2.2.
“ICC” is defined in Section 220.127.116.11.
“Malicious Code” means code, files, scripts, agents or programs that do harm, including, for example and without limitation, viruses, worms, time bombs and Trojan horses.
“Order Form” means the document issued or confirmed by QSC, which may include an online order, specifying the Platform services to which Customer subscribes and the subscription start and end dates. Each and every Order Form is subject to the terms and conditions of this Agreement.
“Personal Data” means any data, whether true or not, about an individual who can be identified from that data, or from that data and other information to which a party has or is likely to have access, or any other information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Platform” means QSC’s Q-SYS Reflect Platform or such other platform of QSC through which the Services are provided.
“QSC EMEA” is defined in Section 12.4.3.
“QSC IP Rights” is defined in Section 6.1.
“QSC Technology” is defined in Section 6.1.
“Recipient” is defined in Section 7.1.
"Services" means the specific components of the Platform to which Customer subscribes under an Order Form, or that are provided to Customer under a Free Trial or Beta Release, which may include Q‐SYS Reflect Enterprise Manager, which is a cloudbased Audio Video Control (AVC) monitoring and management solution for Q‐SYS® devices and third party peripherals.
“Service Fees” is defined in Section 5.1.
“Term” is defined in Section 4.1.
"Third-Party Applications" means applications, services or software products that are provided by third parties.
“Trial Period” is defined in Section 2.2.
"User" means Customer or Customer's employees or independent contractors, who are authorized under this Agreement or a separate written agreement to access and use the Services, and who are acting for the sole benefit of Customer and under Customer’s supervision and control.
2. LICENSE TO ACCESS & USE THE SERVICES
- 2.1. Access to the Services. The Services are provided on a subscription basis. During the Term, Customer may access and use the Services for its internal business operations, subject to this Agreement and the applicable Order Form. QSC will also provide technical support consistent with the applicable QSC support policy.
- 2.2. Free Trials & Beta Releases. QSC may offer Customer access to some or all the features of the Platform on a trial basis free of charge ("Free Trial") or make “alpha,” “beta,” or other early‐stage services (“Beta Releases”) available to Customer. A Free Trial may include limited features, a short term period of use or a demonstration version. QSC will determine, at its sole discretion, the availability, duration (the "Trial Period") and features of each Free Trial. Additional Free Trial or Beta Release terms and conditions may appear on the applicable registration web page or in a separate document or documents, including, but not limited to, the period during which Customer will have access to a Beta Release (the “Beta Period”). Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
- 2.2.1. WITH RESPECT TO A FREE TRIAL AND BETA RELEASES, ANY DATA CUSTOMER OR USERS ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER OR USERS, DURING CUSTOMER’S TRIAL PERIOD OR BETA PERIOD WILL BE PERMANENTLY LOST UPON EXPIRATION OF THE TRIAL PERIOD OR BETA PERIOD UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL OR BETA RELEASE. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH NEITHER QSC NOR ITS AFFILIATES WILL BE RESPONSIBLE OR LIABLE.
- 2.2.2. NOTWITHSTANDING THE REPRESENTATIONS AND WARRANTIES AND MUTUAL INDEMNIFICATION PROVISIONS BELOW, DURING THE TRIAL PERIOD, AND AS TO ANY BETA RELEASE, THE SERVICES ARE PROVIDED "AS‐IS" WITHOUT ANY WARRANTY TO THE FULLEST EXTENT PERMITTED BY LAW OR SUPPORT, MAINTENANCE, OR STORAGE OBLIGATIONS AND NEITHER QSC NOR ITS AFFILIATES SHALL HAVE ANY INDEMNIFICATION OBLIGATIONS OR LIABILITY WHATSOEVER TO CUSTOMER RELATED TO THE SERVICES, FREE TRIAL, OR BETA RELEASE. CUSTOMER ENGAGES IN A FREE TRIAL AND/OR USES A BETA RELEASE AT ITS DISCRETION AND SOLE RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY LAW, (I) QSC DISCLAIMS ANY LIABILITY FOR ISSUES THAT MAY ARISE DURING OR AS A RESULT OF CUSTOMER’S USE OF THE SERVICES DURING A FREE TRIAL OR USE OF A BETA RELEASE, AND (II) EITHER PARTY MAY TERMINATE A FREE TRIAL OR BETA RELEASE AT ANY TIME.
- 2.3. Necessary Equipment. Customer recognizes and agrees that to access and use the Services: (i) Customer’s and its Users’ systems must meet certain minimum system requirements and (ii) certain other third‐party software or applications may need to be acquired, installed, and/or licensed directly by Customer. QSC is not responsible for, nor does it make any representations or warranties concerning the performance of such third‐party components. Customer is responsible for obtaining, installing and maintaining the equipment and network services necessary to access and use the Services and for any network provider or other charges associated with connecting to, accessing, and using the Services.
- 2.4. Customer Responsibilities. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) notify QSC promptly of any unauthorized use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100, et seq., ; and (iv) access, use, and refer to the Services, QSC Technology (defined below), and QSC intellectual property only in accordance with this Agreement, the applicable Order Form(s) and Documentation.
- 2.5. Use Guidelines & Prohibited Uses. Only Customer and Users may access and use the Services or any part or component of the Services. QSC explicitly prohibits Customer from permitting, allowing or facilitating the use of or access to the Services or any part of the Platform by unauthorized persons, entities, or third parties. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, use the Services in connection with providing services to any third party, or otherwise commercially exploit or make the Services available to any third party, other than as specifically permitted by this Agreement or in a separate written agreement between QSC and Customer; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or harmful computer code, files, scripts, agents, programs or other Malicious Codes; (v) interfere with or disrupt the integrity or performance of the Services, the Platform, or the data contained therein; (vi) attempt to gain unauthorized access to the Services, Platform, or its related systems or networks; or (vii) allow unauthorized users to access the Services or the Platform. User subscriptions may be reassigned from time to time to new Users replacing former Users who have terminated an employment or some other prior relationship with Customer, or no longer require ongoing use of the Services. At all times, Customer is responsible for User’s use of the Services and all User account activities that occur under Customer's User accounts. Customer will ensure that such use complies with the terms of this Agreement. Any non-compliance with the terms of this Agreement by any User shall be considered a breach by Customer hereunder. QSC may audit accounts to ensure compliance. Any unauthorized use or access will constitute a material breach of this Agreement and may result in the User’s access being immediately or otherwise suspended or terminated. Customer will also be charged for and responsible for payment related to excess usage in violation of this Agreement, including any associated late fees and penalties.
- 2.6. Additional Restrictions. Customer will not, and will ensure that Users do not, permit any third party to: (i) access the Services for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (ii) use the Services in a way that harms other customers or users, QSC or QSC’s Affiliates, resellers, distributors, service providers and/or suppliers; (iii) resell, copy, transfer, reproduce, modify, translate, prepare derivative works of, decompile, reverse engineer (except to the extent permitted by law), disassemble or otherwise attempt to derive source code from the Services; (iv) use the Services to store or transmit code, files, scripts, agents or programs that do harm, including but not limited to, Malicious Code; (v) circumvent or disable any security or other technological features or measures of the Services; (vi) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services); or publicly disseminate performance information regarding the Services; or (viii) access the Services to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Services, or (C) copy any ideas, features, functions or graphics of the Services. Except for the express rights granted herein, QSC does not grant any other use or licenses, whether express or implied, to any QSC software, services, technology, or intellectual property. Customer’s failure to comply with any of the terms set forth above under Sections 2.4, 2.5, and 2.6 shall constitute a material breach of this Agreement and QSC may immediately terminate this Agreement.
- 2.7. Customer’s Use of Third‐Party Providers. Certain third‐party providers, some of which may be identified on QSC's website, offer products and services related to the Services, including implementation, customization, plug‐ins, application programming interfaces (“APIs”) and other services related to customers’ use of the Services and applications (both offline and online) that work in conjunction with the Services, such as, without limitation, by exchanging data with the Services or by offering additional functionality within the user interface of the Services through use of the Services’ API. QSC does not warrant any such third‐party providers or any of their products or services, whether or not such products or services are designated by QSC as "certified," "validated," or otherwise. Any exchange of data or other interaction between Customer and a third‐party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third‐party provider.
- 2.8. Integration. The Services may contain features designed to interoperate with Third‐Party Applications. To use such features, Customer may be required to obtain access to such Third‐Party Applications from their providers. If the provider of any such Third‐Party Applications ceases to make the Third‐Party Applications available for interoperation with the Services on reasonable terms, QSC may cease providing such features without entitling Customer to any refund, credit, or other compensation. In addition, Customer must ensure that it complies with any applicable third‐party application development or distribution agreements when using or distributing the Service (including any QSC applications). Customer may and must not take any action that would cause QSC, the Service, or the QSC Technology to become subject to any third‐party terms including open source license terms.
- 2.9. Updates and Upgrades. The Services are subject to change from time to time. QSC reserves the right, at its discretion, to change, modify, add, remove, or discontinue the Services, in whole or in part, at any time without liability to Customer. If QSC discontinues the Services, QSC shall provide notice in accordance with Section 4 and will provide a pro‐rata refund of all prepaid but unused Service Fees for the remainder of the then‐current term. Future versions of the Services may be developed and released by QSC at its sole discretion. QSC does not warrant or represent that it will develop or release any upgrades within a given timeframe. If Customer is at any time dissatisfied with the Services, Customer’s sole remedy is to discontinue use of the Services.
- 2.10. QSC’s Use of Third‐Party Providers. Customer acknowledges and consents to QSC’s use of third party information technology providers, including but not limited to cloud service providers, to deliver the Services to Customer.
3. Security and Data Privacy.
- 3.1 Protection of Customer Data.
- 3.1.1. QSC has adopted and will maintain industry‐standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data. QSC will not be responsible for loss of data transmitted on networks not owned or controlled by QSC, including the internet or any third‐party hosting services. QSC shall have no responsibility for errors in transmission, unauthorized thirdparty access or other causes beyond QSC’s control.
- 3.1.2. For Customers located in the jurisdictions outside of the United States that are identified in Exhibit A (Local Law Provisions), the additional provisions in Exhibit A (Local Law Provisions) applicable to the jurisdiction where they are located will apply.
- 3.3 Customer Obligations.
- 3.3.1. Collection and Use of Customer Data.
- (a) Except as expressly provided in Section 9.1 (Indemnification by QSC) and Section 8.1 (Limited Warranty by QSC), Customer is solely responsible for (i) the accuracy, quality, content, legality and use of Customer Data, including the means by which Customer Data is acquired and transferred by Customer or its Users to QSC or outside of the Services; and (ii) all applicable local laws, and terms and conditions related to procurement and use of Customer Data.
- 3.3.2. Personal Data. Except as expressly provided in Section 9.1 (Indemnification by QSC) and Section 8.1 (Limited Warranty by QSC), and pursuant to applicable data protection laws, the parties agree that QSC has no liability under this Agreement for Personal Data or Customer Data received from Customer, notwithstanding anything to the contrary herein.
4. TERM AND TERMINATION
- 4.1. Term. This Agreement commences on Customer’s acceptance and shall remain in effect until expiration of all Platform subscriptions, Trial Periods, and Beta Periods (the "Term"), unless sooner terminated pursuant to this Agreement. Except as otherwise specified in an applicable Order Form, subscriptions will automatically renew for subsequent one‐year periods at the then‐current prices offered by QSC, unless either party gives the other written notice of non‐renewal at least forty‐five (45) days prior to expiration of the then‐current Term. Trial Periods and Beta Periods shall not renew unless otherwise agreed in writing by QSC.
- 4.2. Termination for Cause. This Agreement may be terminated by either party: (i) if the other party is in material breach of this Agreement and the breach, if curable, is not cured within five (5) days after written notice of the breach, except that QSC may terminate immediately as provided in Section 2.6; or (ii) to such extent permitted by law, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- 4.3. Effect of Termination. Upon the termination of this Agreement: (i) except as specified in Section 3.2, Customer Data will be stored according to QSC’s current data retention policy in accordance with applicable law; (ii) all sums due and payable by Customer to QSC under this Agreement shall become immediately due and payable; and (iii) Customer shall, and shall procure that any User shall, cease all access and use of the Services and the Platform.
- 4.4. Survival. The following sections of this Agreement will survive termination or expiration of this Agreement: Section 1 (Definitions); Section 2.2 (Free Trials and Beta Releases); Sections 2.2.1 and 2.2.2; Section 2.7 (Customer’s Use of Third‐Party Providers); Section 3.2 (Customer Data); 3.3.2 (Personal Data); Section 4.4 (Survival); Sections 5 (Fees and Payment) through 12 (Dispute Resolution; Arbitration; Sections 13.1 (Independent Contractor) through 13.4 (Severability); and Sections 13.6 (Notices) through 13.11 (Signatures), as will each other provision of this Agreement that expressly or by its nature provides for rights, obligations, or remedies that extend or are meant to extend beyond any termination or expiration of this Agreement.
5. FEES AND PAYMENT
- 5.1. Fees. Customer shall pay QSC for use of the Services ("Service Fees") as set forth in the applicable Order Form. Additional Services, peripherals or features may be accessed at any point in time during the use of the Services and are field activated. Service Fees for these additional Services are due and payable at the time of activation. Unless otherwise specified in the applicable Order Form, Service Fees are payable in advance. If, however, Customer’s use of the Services exceeds that for which it has paid in advance — whether due to, among other things, the activation or use of one or more Q‐SYS Cores or peripherals in addition to those specified in the applicable Order Form — QSC will invoice Customer, and Customer shall pay QSC, for the Service Fees associated with those additions. All fees are non‐refundable, unless otherwise expressly provided by this Agreement or by law, and the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on the applicable Order Form. All Service Fees are due and payable in the currency stated on the Order Form.
- 5.2. Billing and Payment Terms Unless otherwise stated in this Agreement or the applicable Order Form, Service Fees will be invoiced and must be paid net thirty (30) days from the invoice date. If Customer selects a payment method such as credit card, bank transfer or SEPA, Customer authorizes QSC’s payment processor to charge Customer the Service Fee and any other charges Customer may incur in connection with the Services automatically in accordance with the Order Form. Any invoices issued by QSC must be paid in accordance with the terms specified in the applicable Order Form.
- 5.3. Overdue Charges. If payment is not made within 15 days after the respective due date, QSC may charge Customer a late fee on the unpaid balance at the lesser of 1.5% per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly. Should Customer not pay amounts when due, QSC may also (at its discretion and in addition to other remedies it may have) suspend Customer’s access to the Services.
- 5.4. Taxes. The fees for the Services exclude all sales, goods and services, value‐added, use, or similar taxes unless expressly stated otherwise. To the maximum extent permitted by law, Customer shall pay such taxes and charges in full, except for taxes based on QSC’s net income. To the extent that such taxes and charges are borne by QSC, then such taxes and charges shall be added to the amounts payable by Customer to QSC.
6. PROPRIETARY RIGHTS
- Services Ownership. Customer acknowledges that in providing the Services, QSC uses: (i) the QSC name, QSC logo, qsc.com domain name, product and service names associated with the Services, and other QSC intellectual property; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know‐how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "QSC Technology"). Customer further acknowledges that the QSC Technology is covered by intellectual property rights and/or other proprietary rights (whether or not registered, specifically recognized or perfected under applicable law), including, but not limited to, trademarks, trade dress, and service marks, patents and patent applications, and copyrights owned or licensed by QSC or its Affiliates, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world (collectively, "QSC IP Rights"). All title and intellectual property rights in and to the content of any third‐party application or third‐party website that may be linked to or viewed in connection with the Services is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants Customer no rights to use such content.
- 6.2 Customer Data. As between QSC and Customer, all Customer Data is owned exclusively by Customer. Customer Data shall be considered Confidential Information subject to the terms of this Agreement.
- 6.3 Feedback. QSC (and its Affiliates and/or their respective licensors, where applicable) shall solely and exclusively own all right, title and interest, including all related intellectual property rights, in and to the QSC Technology and QSC IP Rights, and any suggestions, ideas, enhancement requests, results from processing anonymized or non-personal aggregate data, feedback, recommendations or other information (the "Feedback") provided by Customer, the Users, or any other party relating to the Services. Customer hereby, and shall procure that the Users or any third party, irrevocably cedes, assigns and transfers any and all right, title, and interest in and to the Feedback to QSC (and its Affiliates and/or their respective licensors, where applicable), and Customer hereby waives, and shall procure that the Users or any third party waive any and all applicable moral or similar rights. Customer shall forthwith do all acts and execute all documents which QSC deems necessary for assigning such rights, titles and interests to QSC (and its Affiliates and/or their respective licensors, where appliable) without payment of any fee or premium to Customer. Without prejudice to the foregoing, Customer hereby grants QSC an irrevocable power of attorney to execute any such documents as may be required to demonstrate and record ownership of any rights, titles and interests contemplated within this Section 6.3.
- 6.4. Publicity. By subscribing to the Services, and unless Customer expressly states in writing that Customer withholds permission, Customer hereby acknowledges, agrees and authorizes QSC and its Affiliates to publicly present Customer by name, logo, URL and description as a User of the Services.
- 6.5. Reservation of Rights. Other than as expressly set forth in this Agreement, no license or other rights in or to the Services, the Platform, related data or materials, QSC Technology, QSC IP Rights, or any QSC intellectual property are granted to Customer. QSC expressly reserves all rights therein, including, without limitation, all related intellectual property and other proprietary rights, that are not expressly granted to Customer pursuant to this Agreement. Nothing in this Agreement will be deemed to transfer the ownership thereof.
- 7.2. Confidential Information Definition. “Confidential Information” means: (i) all information of a confidential nature concerning the trade secrets or business dealings, methods of business, customers, clients, suppliers, market information, transactions, plans or affairs of a party; (ii) any information developed by the parties in the course of carrying out this Agreement; (iii) any document or information marked “Confidential,” “Commercial in Confidence” or otherwise expressly designated as confidential; (iv) any information which by its nature the Recipient ought reasonably to conclude was confidential information of the Disclosing Party in all cases whether encrypted or not; and/or (v) lists or compilations and all copies of the above on any media (including electronic media) whatsoever. Notwithstanding the foregoing, Confidential Information shall not include information which: (A) is in or enters the public domain without any fault of the Recipient; (B) was rightfully in the Recipient’s possession at the time of disclosure by the Disclosing Party; (C) is disclosed to the Recipient by a third party without any obligations of confidentiality after the time of disclosure by the Disclosing Party; or (D) the Recipient can show, by documentary or competent evidence, to have been developed independently by the Recipient without using Confidential Information of the Disclosing Party.
8. REPRESENTATIONS AND WARRANTIES
- 8.1. By QSC. QSC represents and warrants that, during the Term, the Services will perform materially in accordance with the description set forth in the Documentation or as such description may be updated by QSC from time to time at its sole discretion without liability to Customer. For any breach of such warranty, Customer’s exclusive remedy is as provided in Section 4.2. NOTWITHSTANDING THIS SECTION, DURING A TRIAL PERIOD OR BETA PERIOD, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW.
- 8.2. By Customer. Customer represents and warrants that: (i) it is a corporate entity duly registered and validly existing under its place of registration; (ii) it has full power, capacity and authority to execute and deliver this Agreement, any Order Form and the agreements contemplated therein and to consummate the transactions contemplated hereby and that this Agreement, all Order Forms and all such other agreements and obligations entered into and undertaken in connection with the transactions contemplated hereby constitute its valid and legally binding obligations, enforceable against it in accordance with the respective terms; (iii) the execution and delivery of and the performance of its obligations under this Agreement and any Order Form shall not (A) infringe, or constitute a default under, any instrument, contract, document or agreement to which it is a party or by which it or its assets are bound or (B) result in a breach of any applicable laws, rule, regulation, ordinance, order, judgement or decree of or undertaking to any court, government body, statutory authority or regulatory, administrative or supervisory body to which it is a party or by which it or its assets are bound; (iv) it has obtained all applicable governmental, statutory, regulatory or other consents, licenses, waivers or exemptions required to empower it to enter into and to perform its obligations under this Agreement and any Order Form; (v) it has the financial ability to perform its obligations hereunder; (vi) no corporate action nor any other steps have been taken, nor have legal proceedings been initiated or threatened, for the winding-up, dissolution, administration, insolvency, or for the appointment of (if applicable) a liquidator, receiver, administrator, trustee or similar person for it or for any or all of its assets or revenues; (vii) there are no actions or proceedings pending or, to the best of its knowledge, threatened against it or any of its representative(s) which, if determined adversely against or any of its representative(s), could reasonably be expected to result in a material adverse effect; and (viii) its and any Users’ access and use of the Services does not and will not during the Term operate in any manner that would violate any applicable law or regulation or breach or violate any obligation Customer or Users may have to a third party. Customer further represents and warrants that Customer and Users will comply by all laws, rules, and regulations that are applicable to use of the Services and that Customer Data will comply with all applicable laws and regulations, and will not infringe the copyright, trademark, trade secret, patent, privacy, publicity, or any other rights of any third party. In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties herein, or if QSC becomes aware of any inaccuracies in Customer’s representations, in addition to any other remedies available at law or in equity, QSC will have the right to immediately, in QSC’s sole discretion, suspend the Services if deemed reasonably necessary by QSC to prevent any liability to QSC.
- 8.3. Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTION 8.1, THE SERVICES ARE PROVIDED "AS IS" AND CUSTOMER AGREES THAT CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, QSC DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. QSC MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR NEEDS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR BE FREE FROM SOFTWARE ERRORS. QSC DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED (INCLUDING PLUG‐INS) THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S OWN RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
9. MUTUAL INDEMNIFICATION
- 9.1. Indemnification by QSC. QSC shall: (i) defend, indemnify and hold harmless Customer and Customer’s officers, directors, employees and agents from and against any and all actual claims, damages, costs, losses, liabilities and expenses (including reasonable outside attorneys' fees) (collectively, "Claims") made or brought against Customer by a third party to the extent that the use of the Services as contemplated hereunder infringes the intellectual property rights of a third party, but only to the extent the infringement is of intellectual property rights covering the United States; and (ii) pay (A) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such infringement; or (B) those damages agreed to by QSC in a monetary settlement of such Claim; provided, that Customer (1) promptly gives written notice of the Claim to QSC; (2) gives QSC sole control of the defense and settlement of the Claim (provided that QSC may not settle any Claim unless it unconditionally releases Customer of all liability); and (3) provides to QSC, at QSC's cost, all reasonable assistance. If QSC believes that the Services are or may become the subject of a claim of infringement, QSC may, at its option and expense, procure for itself and/or Customer the right to continue to use the Services, or modify or replace the Services to make the Services non‐infringing and functionally equivalent. If QSC concludes, in its sole discretion, that neither of these alternatives is appropriate, it may terminate this Agreement and the Order Form upon written notice and refund any prepaid fees covering the remainder of the Term after such termination. QSC will have no liability or obligation under this Section 9.1 with respect to any Claims arising out of (a) the use of the Services by Customer in breach of this Agreement; (b) the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or (c) use during any Free Trial or Beta Period or Services for which there is no charge.
- 9.2. Indemnification by Customer. Customer shall defend, indemnify and hold harmless QSC and its Affiliates, officers, directors, employees and agents from and against any and all actual or alleged Claims brought against QSC or its Affiliates by a third party arising out of or related to: (i) the Customer Data or Customer’s unlawful use of the Services (as opposed to the Services itself); (ii) any Feedback Customer provides; (iii) Customer’s breach of this Agreement, or inaccuracy in Customer’s representations or breach of its warranties herein; (iv) Customer’s violation of the rights of another; or (v) Customer’s directly or indirectly instructing, inducing, encouraging, convincing, or otherwise suggesting or implying to any third party the use or configuration of the Services, alone or in combination with any third party product, system, service, or process, that results in the infringement or otherwise violation of any third party patent or other intellectual property right. QSC, its Affiliates, or both will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
- 9.3. Procedures. The party seeking indemnification shall provide detailed written notice to the indemnifying party promptly after learning of the Claim, and the indemnifying party shall not be obligated to indemnify to the extent it is materially prejudiced by any delay in such notice. The indemnifying party shall have the right to assume control of the defense and settlement of the claim, and the indemnified party shall provide reasonable assistance at the indemnifying party’s reasonable expense, provided that the indemnified party shall not be obligated to participate in any settlement pursuant to which the indemnified party is required to admit liability or fault or to pay any amount other than amounts concurrently reimbursed by the indemnifying party.
10. LIMITATION OF LIABILITY
- 10.1. Exclusions. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL QSC OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOST PROFITS, LOST REVENUES, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES FOR ANY REASON, INCLUDING UNDER CONTRACT, TORT (DELICT) (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, EVEN IF CUSTOMER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- 10.2. Maximum Liability. IN NO EVENT SHALL THE TOTAL LIABILITY OF QSC TOGETHER WITH ALL OF ITS AFFILIATES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO QSC FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT (DELICT) AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 ABOVE.
- 10.3. Basis of the Bargain; Failure of Essential Purpose. CUSTOMER ACKNOWLEDGES THAT QSC HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE EXCLUSIONS AND LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
- 10.4. Local Law Provisions. For Customers located in the jurisdictions outside of the United States that are identified in Exhibit A (Local Law Provisions), the additional provisions in Exhibit A (Local Law Provisions) applicable to the jurisdiction where they are located will apply.
- 11.1 Except as expressly stated otherwise herein, neither party may assign, cede, delegate or otherwise transfer (including by operation of law) any rights or obligations under this Agreement without the written consent of the other party, except that either party may, without such consent, assign, cede, delegate or otherwise transfer this Agreement to a successor to the business of such party by merger, sale of assets or otherwise. Any assignment, cession, delegation or transfer, or attempted assignment, cession, delegation or transfer, in violation of this Agreement is void. This Agreement is not intended to confer any rights or remedies upon anyone other than the parties hereto.
- 11.2 Notwithstanding the foregoing, the parties expressly agree that QSC is entitled to assign this Agreement with all rights and obligations to a QSC Affiliate, which will then become a contractual partner of Customer. QSC will make such a transfer after the conclusion of this Agreement for Customers domiciled in the EEA, United Kingdom, Switzerland, Africa, or the Middle East, QSC will assign this Agreement to:
QSC EMEA GmbH
Am Ilvesbach 6
12. DISPUTE RESOLUTION; ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES CUSTOMER TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH QSC AND ITS AFFILIATES AND LIMITS THE MANNER IN WHICH CUSTOMER CAN SEEK RELIEF FROM QSC.
- 12.1. Governing Law. This Agreement and Customer’s access to and use of the Services will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. Except as may otherwise be required by local law, Customer hereby irrevocably consents to the jurisdiction and venue of the federal and state courts located in Orange County, California, with respect to any Dispute between the parties that is not subject to arbitration under this Agreement.
- 12.2. Attempt to Resolve Informally. Customer and QSC agree that the parties must notify each other in writing of any dispute, claim, or controversy arising out of or relating to this Agreement, any Order Form or the Services or the breach, termination, enforcement, interpretation or validity of this Agreement (a "Dispute") within thirty (30) days of when the party raising the Dispute becomes aware of such Dispute so that the parties can attempt in good faith to resolve the Dispute informally. Notice shall be sent by certified mail or courier to the address or addresses listed below in Section 13.6. A notice must include: (1) the party’s name, postal address and email address; (2) a description of the nature or basis of the Dispute; and (3) the specific relief that the party is seeking. If the parties cannot agree how to resolve the Dispute within thirty (30) days after the recipient receives the claimant’s notice of the Dispute, either party may, as appropriate pursuant to this Section 12, commence an arbitration proceeding, small claims action, or an action that seeks injunctive or other equitable relief for the alleged infringement, misappropriation, or other violation of the claimant’s copyrights, trademarks, trade names, logos, trade secrets or patents. Customer and QSC agree that any arbitration or other proceeding initiated by Customer must be commenced within one (1) year after the Dispute arose; otherwise, Customer and QSC agree that the claim by Customer is permanently barred (which means that Customer will no longer have the right to assert a claim regarding the Dispute).
- 12.3. Binding & No Class Arbitrations, Class Actions or Representative Actions. CUSTOMER AND QSC AGREE THAT ANY DISPUTE IS PERSONAL TO CUSTOMER AND QSC AND THAT SUCH DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. NEITHER PARTY AGREES TO CLASS ARBITRATION OR TO AN ARBITRATION IN WHICH AN INDIVIDUAL ATTEMPTS TO RESOLVE A DISPUTE AS A REPRESENTATIVE OF ANOTHER INDIVIDUAL OR GROUP OF INDIVIDUALS.
- 12.4. Binding & Final Arbitration Except for a Dispute in which either party seeks to bring an individual action in small claims court or seeks injunctive, interdictory or other equitable relief for the alleged infringement, misappropriation, or other violation of the claimant’s copyrights, trademarks, trade names, logos, trade secrets or patents, Customer and QSC each: (i) waive the right to have any and all Disputes resolved in a court; and (ii) waive the right to a jury trial (where applicable). Instead, Customer and QSC will arbitrate any and all Disputes, including but not limited to any concerning the scope or applicability of this agreement to arbitrate, through final, binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
- 12.4.1 Interstate Commerce Affected. Customer and QSC agree that this Agreement affects interstate commerce and that the enforceability of this Section shall be governed by, construed and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA") to the maximum extent permitted by applicable law.
- 12.4.2 Disputes with QSC, LLC. If QSC, LLC is a party to this Agreement at the time a Dispute arises, the following provisions are applicable to any claim regarding the Dispute brought by or made against QSC, LLC.
- 18.104.22.168. Arbitral Body; Jurisdiction and Location. Customer and QSC agree that: (i) any arbitration will occur in Orange County, California; (ii) arbitration will be administered by JAMS pursuant to the appropriate JAMS rules, confidentially, and by a single arbitrator; (iii) all arbitration proceedings, including but not limited to any hearing or hearings, will be conducted in English; (iv) judgment on the arbitration award may be entered by any court having jurisdiction; and (v) each party is responsible for its own costs.
- 22.214.171.124. Authority of Arbitrator. As limited by the FAA, this Agreement and applicable JAMS rules, the arbitrator will have (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, and (ii) the authority to grant any remedy that would otherwise be available in court including reasonable outside attorneys’ fees. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual's claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
- 126.96.36.199. Rules of JAMS. The rules of, and additional information about, JAMS are available on the JAMS website at http://www.jamsadr.com/, as may be updated from time to time. By agreeing to be bound by this Agreement, Customer either (i) acknowledges and agrees that Customer has read and understands the rules of JAMS or (ii) waives Customer’s opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
- 12.4.3. Disputes with QSC EMEA, GmbH. If QSC EMEA GmbH (“QSC EMEA”) is a party to this Agreement at the time a Dispute arises, the following provisions are applicable to any claim regarding the Dispute brought by or made against QSC EMEA.
- 188.8.131.52. Arbitral Body; Jurisdiction and Location. Customer and QSC agree that: (i) any arbitration will occur in Frankfurt, Germany; (ii) arbitration will be conducted confidentially in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by a single arbitrator appointed in accordance with said Rules; (iii) all arbitration proceedings, including but not limited to any hearing or hearings, will be conducted in English; and (iv) judgment on the arbitration award may be entered by any court having jurisdiction.
- 184.108.40.206. Authority of Arbitrator. As limited by this Agreement and applicable ICC rules, the arbitrator will have: (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute; and (ii) the authority to grant any remedy that would otherwise be available in court including equitable remedies and reasonable outside attorneys’ fees. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual's claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
- 220.127.116.11. Rules of ICC. The rules of, and additional information about, the ICC are available on the ICC website at https://iccwbo.org/dispute‐resolutionservices/arbitration/, as may be updated from time to time. By agreeing to be bound by this Agreement, Customer acknowledges and agrees that Customer has read and understands the rules of the ICC.
- 12.4.4. Changes. Notwithstanding the provisions herein related to modifications of this Agreement, if QSC revises this Section after the date Customer first accepted this Agreement (or accepted any subsequent changes to this Agreement), Customer may reject any such change within thirty (30) days of the date such change became effective by providing QSC written notice of such rejection and delivering such notice to: QSC, LLC, Attn: Legal Department, 1675 MacArthur Boulevard, Costa Mesa, CA 92626. To be effective, Customer’s written notice must include Customer’s full name and clearly indicate Customer’s intent to reject changes to this Section. By rejecting such changes, Customer is agreeing to resolve disputes in accordance with the last version of this Section accepted by Customer.
- 12.5. Equitable Relief; Cumulative Remedies. For the avoidance of doubt, each party agrees that the other party may seek any appropriate equitable remedy from any appropriate judicial authority, including, if applicable, an arbitrator, whether or not any breach of or dispute concerning this Agreement is being or may be arbitrated, without the necessity of proving damages or posting a bond. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
- 13.1. Independent Contractor. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- 13.2. Entire Agreement; Amendment; Waiver. With respect to its subject matter, this Agreement represents the parties’ entire agreement and supersedes all prior agreements, understandings and representations, written or oral, between the parties. This Agreement may only be amended in writing specifically identified as an “Amendment” to this Agreement that evidences a clear intention to amend this Agreement and that is signed by each party (or their authorized representatives). The failure of a party to require performance of any provision of this Agreement shall in no manner affect its right to enforce the provision.
- 13.3. Force Majeure. QSC is not responsible for any delays, delivery failures or damage caused by Force Majeure.
- 13.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. Further, the waivers set forth in Section 12.3 are severable from the other provisions of this Agreement and will remain valid and enforceable except as prohibited by applicable law.
- 13.5. Compliance
- 13.5.1. Export Compliance. Export laws and regulations of the United States and other relevant local export laws and regulations apply to the Services. Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from the Services (or a direct product thereof) will be exported, directly or indirectly in violation of these laws or will be used for any purpose prohibited by these laws. Customer acknowledges that the Services are designed with capabilities for Customer and Users to access the Services without regard to geographic location and to transfer or move Customer Data. Customer is solely responsible for the authorization and management of Services as well as the export control and geographic transfer of Customer Data.
- 13.5.2. Anti-Bribery and Anti-Corruption. Customer and QSC shall comply with the U.S. Foreign Corrupt Practices Act and the anti‐corruption laws of other countries, to the extent applicable. Customer agrees that Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of QSC’s employees or agents in connection with this Agreement. If Customer learns of any violation of the foregoing restriction, Customer will use reasonable efforts to promptly notify QSC’s legal department in writing.
- 13.6. Notices. Any notice, request or communication required or permitted to be given under this Agreement shall be in writing and shall be effective upon its actual receipt by or provable attempted delivery to the other party addressed in each case as follows:
If to Customer: At the corresponding address stated on the applicable Order Form.
If to QSC: QSC, LLC
ATTN: Legal Department
1675 MacArthur Boulevard
Costa Mesa, CA 92626
If to QSC EMEA: QSC EMEA GmbH
Am Ilvesbach 6
74889 Sinsheim | Germany
With copy to:
ATTN: Legal Department
1675 MacArthur Boulevard
Costa Mesa, CA 92626
Email: [email protected]
A party may change its notice address by notice in accordance with this Section 13.6. Notices shall be deemed to have been duly given and received upon provable (i) delivery or (ii) attempted delivery.
- 13.7. Additional Terms. If Customer submits a purchase order or similar document in connection with Customer’s subscription for the Services, any terms or conditions contained in Customer’s purchase order or other document or otherwise proposed by Customer are objected to and rejected by QSC without a need of further notice of objection or rejected and shall not be binding on QSC unless specifically agreed to in writing by an authorized officer of QSC. Upon such agreement, any conflict between the terms and conditions of this Agreement and the terms and conditions of any purchase order or other document submitted by Customer shall be resolved in favor of the terms and conditions in this Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form; (2) this Agreement; and (3) the Documentation.
- 13.8. Section Headings; Construction. The references to Sections refer to corresponding sections of this Agreement unless otherwise specified. Any Section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. As appropriate, singular usage includes plural and plural usage includes singular.
- 13.9. Communications; Interpretation. To the extent permitted by applicable law: (i) all communications between the parties shall be in the English language; (ii) any technical measurements furnished by any party shall be expressed according to the system of measurement normally employed in the United States; (iii) any translation of this Agreement desired or required by Customer or local law, respectively, shall be at Customer’s expense; and (iv) notwithstanding any translation, the English language version of this Agreement shall control.
- 13.10. Consultation. Each party acknowledges that it has had the opportunity to consult with an attorney of its choice regarding this Agreement, whether or not it has availed itself of such opportunity. Therefore, no rule of construction or interpretation that disfavors the party drafting this Agreement or any of its provisions will apply to the interpretation of this Agreement. Instead, this Agreement will be interpreted according to the fair meaning of its terms.
- 13.11. Signatures. This Agreement, and any amendments or addendums hereto, may be executed in one or more counterparts, each of which will be deemed a valid, original agreement, but all of which taken together shall constitute one and the same instrument. The parties intend and agree that Customer’s acceptance pursuant to the third paragraph on the first page of this Agreement, and electronic, pdf, or other nonphysical signatures are as valid under any applicable law as handwritten signatures, including, without limitation, for the purposes of validity, enforceability, and admissibility.
- 13.12. No Third Party Rights. A person who is not a party to this Agreement has no right to enforce any term of this Agreement.
Exhibit A 10/10/23
LOCAL LAW PROVISIONS
For those Customers located in the following jurisdictions, the associated additional terms will apply.
- For Customers located in Australia, the following additional terms will apply:
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, Australia’s Privacy Act 1988 (Cth) and the Spam Act 2003 (cth).
- With respect to Customers domiciled in Australia, despite any other term of this Agreement, if Customer is a consumer for the purpose of the Australian Consumer Law:
- ◦ Nothing in this Agreement excludes any implied condition or warranty the exclusion of which from a contract would contravene any statute (including the Competition and Consumer Act 2010 (Cth)) or cause any part of this agreement to be void ("Nonexcludable Condition").
- ◦ Except in relation to a Non‐excludable Condition that by law cannot be limited, QSC's total liability to Customer for a breach of any Nonexcludable Condition is limited, at QSC's option to any one of:
- Resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing the goods in respect of which the breach occurred; or
- Supplying again or paying the cost of supplying again, the Services in respect of which the breach occurred.
- Consistent with Australian laws, to the extent that QSC processes Personal Data as part of the Services on behalf of Customers located in Australia, in the provision of the Services hereunder, the terms of the QSC Australia and New Zealand Data Protection Addendum, which are hereby incorporated by reference, shall apply.
- For Customers located in Canada, the following additional terms will apply:
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, Canada’s Personal Information Protection and Electronic Documents Act (S.C. 2000, c.5) and other equivalent Canadian federal and provincial laws.
- Consistent with Canadian laws, to the extent that QSC processes Personal Data as part of the Services on behalf of Customers located in Canada, in the provision of the Services hereunder, the terms of the QSC Canada Data Protection Addendum, which are hereby incorporated by reference, shall apply.
EU/EEA and Switzerland
- For Customers located in the EU, Switzerland or the EEA, the following additional terms will apply:
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, the General Data Protection Regulation (EU2016/679) (“GDPR”) and the Swiss Federal Act on Data Protection.
- Consistent with the principles of the GDPR, to the extent that QSC processes Personal Data as part of the Services on behalf of Customers located in the EU, Switzerland or the EEA, in the provision of the Services hereunder, the terms of the QSC Europe and UK Data Protection Addendum, which are hereby incorporated by reference, shall apply. For Customers that are located in the EU, Switzerland or the EEA, the Standard Contractual Clauses adopted by the European Commission, attached to the Europe and UK Data Protection Addendum, provide adequate safeguards for the transfer of Personal Data to QSC outside the EU, Switzerland or the EEA.
- For Customers located in Germany, the following additional terms will apply:
- SOLELY IN THE EVENT THAT, PURSUANT TO APPLICABLE LAW, THE LIABILITY EXCLUSION, LIMITATIONS, OR BOTH IN SECTION 10 OF THE AGREEMENT ARE DETERMINED TO BE INVALID BY A COURT OR OTHER ADJUDICATIVE BODY WITH JURISDICTION OVER THIS AGREEMENT OR A DISPUTE BETWEEN THE PARTIES, THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS WILL NOT APPLY TO CLAIMS: (I) BASED ON A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; (II) FOR PERSONAL INJURY OR DEATH; OR (III) AS TO WHICH APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS OR EXCLUSIONS.
- IN THE EVENT OF A SLIGHT NEGLIGENT INFRINGEMENT OF AN OBLIGATION WHICH IS MATERIAL FOR THE ACHIEVEMENT OF THE PURPOSE OF THIS AGREEMENT (CARDINAL OBLIGATION), THE LIABILITY OF THE PARTIES SHALL BE RESTRICTED TO THE MAXIMUM FORESEEABLE AND TYPICAL DAMAGE. ANY FURTHER LIABILITY FOR SLIGHT NEGLIGENCE SHALL BE EXCLUDED. ESPECIALLY ANY LIABILITY OF THE PARTIES FOR INDIRECT DAMAGES, SUCH AS LOST PROFITS AND LOST SAVINGS IS HEREBY EXCLUDED. THE AFOREMENTIONED RESTRICTION OF LIABILITY SHALL ALSO APPLY TO THE PERSONAL LIABILITY OF THE EMPLOYEES, REPRESENTATIVES AND BODIES OF THE PARTIES.
- For Customers located in Japan, the following additional terms will apply:
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, Japan’s Act on the Protection of Personal Information.
- Consistent with Japanese law, to the extent that QSC processes Personal Data as part of the Services on behalf of Customers located in Japan, in the provision of the Services hereunder, the terms of the QSC Japan Data Protection Addendum, which are hereby incorporated by reference, shall apply.
- For Customers located in Mexico, the following additional terms will apply:
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, Mexico’s Federal Law on Protection of Personal Data Held by Private Parties and its Regulations.
- Consistent with Mexican laws, to the extent that QSC processes Personal Data as part of the Services on behalf of Customers located in Mexico, in the provision of the Services hereunder, the terms of the QSC Mexico Data Protection Addendum, which are hereby incorporated by reference, shall apply.
- For Customers located in New Zealand, the following additional terms will apply:
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, New Zealand’s Privacy Act 1993 (NZ) and the Unsolicited Electronic Messages Act 2007 (NZ).
- Consistent with New Zealand laws, to the extent that QSC processes Personal Data as part of the Services on behalf of Customers located in New Zealand, in the provision of the Services hereunder, the terms of the QSC Australia and New Zealand Data Protection Addendum, which are hereby incorporated by reference, shall apply.
- For Customers located in the Kingdom of Saudi Arabia, the following additional terms will apply:
- Consistent with Saudi laws, to the extent that QSC processes Personal Data as part of the Services on behalf of Customers located in Saudi Arabia, in the provision of the Services hereunder, the terms of the Saudi Personal Data Protection Law and its Implementing Regulations, which are hereby incorporated by reference, shall apply once they become effective. The data of individuals from Kingdom of Saudi Arabia is processed by those parties identified in the Kingdom of Saudi Arabia Data Processing Addendum.
- Consistent with Saudi laws, to the extent that this Agreement overrides any of the provisions of the Cloud Computing Regulatory Framework, which is hereby incorporated by reference, or any other mandatory rules of the Kingdom, those portions shall be invalid.
- With respect to Section 4.3 (Effect of Termination), QSC shall not retain Customer Data after the Agreement has terminated once the purpose of the collection ceases to exist, unless all that may lead to identifying the Customer is removed.
- With respect to Section 3.3.2 (Personal Data), if the Customer suffers material or moral damage as a result of any of the violations Personal Data Protection Law or the Regulations Customer may apply to a competent court for proportionate compensation with no limitation on liability.
- For Customers located in Singapore, the following additional terms will apply:
- Customer and QSC shall comply with the Prevention of Corruption Act (Cap. 241) of Singapore.
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, the Personal Data Protection Act of Singapore.
- With respect to Customers domiciled in Singapore and elsewhere as required by law, nothing in this Agreement shall exclude or restrict any liability for death or personal injury resulting from negligence.
- For Customers located in South Africa, the following additional terms will apply:
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, the Protection of Personal Information Act 4 of 2013 (POPIA).
- Nothing in this Agreement shall limit or exclude a party’s liability: (i) for death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors; (ii) for fraud, fraudulent misrepresentation or willful misconduct; or (iii) for any other liability which cannot be limited or excluded by applicable law.
- Stipulatio Alteri. The stipulations for the benefit of third parties under Section 9 of this Agreement shall, by way of stipulatio alteri, constitute a contract for the benefit of such persons which shall be capable of acceptance at any time by any of them by written notice to that effect to the other party. Prior to acceptance, the benefit of each such stipulation may not be withdrawn by the other party.
- For Customers located in South Korea, the following additional terms will apply:
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, the Personal Information Protection Act (South Korea).
- Consistent with South Korean laws, to the extent that QSC processes Personal Data as part of the Services on behalf of Customers located in South Korea, in the provision of the Services hereunder, the terms of the South Korea Data Protection Addendum, which are hereby incorporated by reference, shall apply.
United Arab Emirates
- For Customers located in the United Arab Emirates ("UAE"), the following additional terms will apply:
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to UAE Federal Law No. 45 of 2021 concerning Protection of Personal Data, and to the extent applicable DIFC Law No. 5 of 2020 – Data Protection Law together with DIFC Data Protection Regulation 2020 and/or ADGM Data Protection Regulations 2021, in each case including any amendments thereof as well as any executive regulations.
- The parties agree that any termination of either party in accordance with the Agreement, including but not limited to termination in accordance with Section 4.2 of the Agreement, shall be effective automatically at the time the termination notice to the other party is effective, there is no need for either party to obtain a court order confirming the valid and effective termination.
- Pursuant to Section 3.3.1.b) of the Agreement, Customer must obtain all necessary rights, releases and consents to allow Customer Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant to QSC the rights granted herein, including obtaining valid User consent for the transfer of personal data outside of the UAE.
- For Customers located in the United Kingdom, the following additional terms will apply:
- Customer and QSC shall comply with the U.K. Bribery Act.
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, Customer shall comply with all applicable local, state, federal, and foreign laws in using the Services, including, but not limited to, the Data Protection Act 2018 and UK General Data Protection Regulation (“UK GDPR”).
- Consistent with the principles of the UK GDPR, to the extent that QSC processes Personal Data as part of the Services on behalf of Customers located in the United Kingdom, in the provision of the Services hereunder, the terms of the QSC Europe and UK Data Protection Addendum, which are hereby incorporated by reference, shall apply. For Customers that are located in the United Kingdom, the Standard Contractual Clauses adopted by the European Commission, attached to the Europe and UK Data Protection Addendum, provide adequate safeguards for the transfer of Personal Data to QSC outside the United Kingdom.
- For Customers located in India, the following additional terms will apply:
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, the Customer shall not host, display, upload, modify, publish, transmit, update or share any information, using the Services, which:
- (i) Belongs to another person and to which you do not have any right to;
- (ii) Is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling or otherwise unlawful in any manner whatsoever; or unlawfully threatening or unlawfully harassing including but not limited to “indecent representation of women” within the meaning of the (Indian) Indecent Representation of Women (Prohibition) Act 1986;
- (iii) Is misleading in any way;
- (iv) Is patently offensive to the online community, such as sexually explicit content, or content that promotes obscenity, paedophilia, racism, bigotry, hatred or physical harm of any kind against any group or individual;
- (v) Harassing or advocates harassment of another person;
- (vi) Involves the transmission of “junk mail”, “chained letters”, or unsolicited mass mailing or “spamming”;
- (vii) Promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous;
- (viii) Infringes upon or violates any third party’s rights (including, but not limited to, intellectual property rights, rights of privacy or rights of publicity);
- (ix) Promotes an illegal or unauthorized copy of another person’s copyrighted work;
- (x) Provides instructional information about illegal activities such as making and/ or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
- (xi) Solicits gambling or engages in any gambling activity which we in our sole discretion believe is or could be construed to be as illegal;
- (xii) Harms minors in any way;
- (xiii) Violates any law for the time being in force;
- (xiv) Impersonates another person;
- (xv) Contains software viruses or any other computer code, files or programs designed to interupt, destroy or limit the functionality of any computer resource; or contains any trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, diminish value of, surreptiously intercept or expropriate any system, data or personal information; and
- (xvi) Threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offense or prevents investigation of any offense or is insulting any other nation.
- Without prejudice to the provisions contained in this Agreement, QSC agrees to keep Customer Data and Personal Data confidential and will refrain from using, under any circumstances, the Customer Data and Personal Data for unsolicited marketing activities and shall use the same in compliance with the requirements prescribed under the Information Technology Act, 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011).
- Pursuant to Section 2.4 (Customer Responsibilities) of the Agreement, the Customer shall not host, display, upload, modify, publish, transmit, update or share any information, using the Services, which: