Master Subscription Agreement
THIS MASTER SUBSCRIPTION AGREEMENT IS ENTERED INTO BETWEEN QSC, LLC (“QSC”) AND LICENSEE AND GOVERNS LICENSEE’S ACCESS TO AND USE OF THE SERVICES.
IF LICENSEE REGISTERS FOR, OR RECEIVES A FREE TRIAL OF THE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
LICENSEE 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: SIGNING BELOW; CHECKING A BOX INDICATING LICENSEE’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). THIS AGREEMENT CAN ONLY BE ENTERED INTO BETWEEN QSC AND A LICENSEE THAT IS A COMMERICIAL 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 LICENSEE’S BEHALF AND BIND LICENSEE 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 Licensee and QSC as of the date of Licensee 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.
“Beta Release” is defined in Section 2.2.
“Confidential Information” is defined in Section 7.2.
"Documentation" means any manuals, descriptions, instructions, or other materials regarding the Services that QSC provides to Licensee, 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.
"Force Majeure" means all events beyond QSC’s reasonable control, including, for example, 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, nondelivery or late delivery by suppliers, and force majeure on the part of suppliers.
“Free Trial” is defined in Section 2.2.
“Licensee” means the commercial enterprise such as a company or other legal entity who is a subscriber to the Services and on whose behalf the individual accepting this Agreement is acting.
"Licensee Data" is defined in Section 3.2.
"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example and without limitation, viruses, worms, time bombs and Trojan horses.
"Order Form" means the document, which may include an online order, specifying the Q-SYS Reflect Platform (the “Platform”) services to which Licensee 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 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.
"Services" means the specific components of the Platform to which Licensee subscribes under an Order Form, or that are provided to Licensee under a Free Trial or Beta Release, which may include Q-SYS Reflect Enterprise Manager, which is a cloud based Audio Video Control (AVC) monitoring and management solution for Q-SYS® devices and third party peripherals.
“Term” is defined in Section 4.1.
"Third-Party Applications" means applications, services or software products that are provided by third parties.
"User" means the Licensee or the Licensee'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 under the Licensee’s supervision and control.
2. LICENSE TO ACCESS & USE THE SERVICES
- 2.1. License to Services. QSC grants the Licensee the non-exclusive and non-transferable right to access and use the Services during the Term, subject to the Agreement’s terms and conditions, and as set forth in the applicable Order Form(s). QSC will also provide technical support consistent with the applicable QSC support policy.
- 2.2. Free Trials & Beta Releases. QSC may offer Licensee access to some or all of 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 Licensee. 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 Licensee 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. ANY DATA LICENSEE OR USERS ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR LICENSEE OR USERS, DURING LICENSEE’S TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS LICENSEE PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL. WITH RESPECT TO BETA RELEASES, LICENSEE 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.
- 2.2.2. NOTWITHSTANDING THE REPRESENTATIONS AND WARRATIES AND MUTUAL INDEMNIFICATION PROVISIONS BELOW, DURING THE TRIAL PERIOD, AND AS TO ANY BETA RELEASE, THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY OR SUPPORT, MAINTENANCE, OR STORAGE OBLIGATIONS AND NEITHER QSC NOR ITS AFFILIATES SHALL HAVE ANY INDEMNIFICATION OBLIGATIONS OR LIABILITY WHATSOEVER TO LICENSEE RELATED TO THE SERVICES, FREE TRIAL, OR BETA RELEASE. LICENSEE 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, (I) QSC DISCLAIMS ANY LIABILITY FOR ISSUES THAT MAY ARISE DURING OR AS A RESULT OF LICENSEE’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. Licensee recognizes and agrees that to access and use the Services: (i) Licensee 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 Licensee. QSC is not responsible for, nor does it make any representations or warranties concerning the performance of such third-party components. Licensee 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. Licensee Responsibilities. Licensee is responsible for all User account activities that occur under Licensee's User accounts. Licensee shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Licensee Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify QSC promptly of any such 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. (“CCPA”), Australia’s Privacy Act 1988 (Cth), the Spam Act 2003 (cth), and the General Data Protection Regulation (EU2016/679) (“GDPR”); and (iv) access, use, and refer to the Services, QSC Technology (defined below), and QSC intellectual property only in accordance with the Agreement, the applicable Order Form(s) and Documentation.
- 2.5. Use Guidelines & Prohibited Uses. Only Licensee and Users may access and use the Services or any part or component of the Services. QSC explicitly prohibits Licensee 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. Licensee 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 Licensee; (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 other harmful computer code, files, scripts, agents or programs; (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 Licensee, or no longer require ongoing use of the Services. At all times Licensee remains responsible for User’s use of the Services and will ensure that such use complies with the terms of the Agreement. A breach of the Agreement by any User shall be considered a breach by Licensee hereunder. QSC may audit accounts to ensure compliance. Any unauthorized use or access will constitute a material breach of this Agreement and will result in the User’s access being suspended or terminated. Licensee 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. Licensee 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 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 intended to 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) allow non-Users to access the Services without sufficient rights to use 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 licenses, whether express or implied, to any QSC software, services, technology or intellectual property. Licensee’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 terminate this Agreement if Licensee fails to cure any such breach(es) within five (5) days after written notice from QSC.
- 2.7. 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 licensees’ use of the Services and applications (both offline and online) that work in conjunction with the Services, such as 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 Licensee and a third-party provider, and any purchase by Licensee of any product or service offered by such third-party provider, is solely between Licensee and such third-party provider.
- 2.8. Integration. The Services may contain features designed to interoperate with Third-Party Applications. To use such features, Licensee 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 Licensee to any refund, credit, or other compensation.
- 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 Licensee. 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 Licensee is at any time dissatisfied with the Services, Licensee’s sole remedy is to discontinue use of the Services.
- 2.10. Third-Party Providers. Licensee 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 Licensee.
3. Security and Data Privacy.
- 3.1 Protection of Licensee 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 Licensee 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.
- 3.1.2. For Licensees located in the European Union or the European Economic Area, the terms of the GDPR Data Protection Addendum entered into by the parties are hereby incorporated by reference pursuant to Section 10.6 (Local Law Provisions – EU/EEA and Switzerland Data Processing). ). For Licensees located in Australia, the terms of the Australia Data Protection Addendum entered into by the parties are hereby incorporated by reference pursuant to Section 10.5 (Local Law Provisions — Australia).
- 3.3 Licensee Obligations.
- 3.3.1. Collection and Use of Licensee Data.
(a) Except as expressly provided in Section 9.1 (Indemnification by QSC) and Section 8.1 (Limited Warranty by QSC), Licensee is solely responsible for (i) the accuracy, quality, content, legality and use of Licensee Data, including the means by which Licensee Data is acquired and transferred by Licensee or its Users outside of the Services; and (ii) all applicable local laws, and terms and conditions related to procurement and use of Licensee 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 Licensee Data received from Licensee, notwithstanding anything to the contrary herein.
- 3.3.3. Licensee Apps. Licensee 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). Licensee may 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.
4. TERM AND TERMINATION
- 4.1. Term. This Agreement commences on the effective date 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 is not cured within 30 days after written notice of the breach, except that QSC may terminate sooner as provided in Section 2.6; or (ii) 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. Except as specified in Section 2.2, Licensee Data will be stored according to QSC’s current data retention policy in accordance with applicable law.
- 4.4. Survival. The following sections of this Agreement will survive termination or expiration of this Agreement: Section 1; Section 2.2; Sections 2.2.1 and 2.2.2; Section 2.7; Section 3.2; Section 3.3.2; Section 4.4; Sections 5 through 12; Sections 13.1 through 13.4; and Sections 13.6 through 13.8.
5. FEES AND PAYMENT
- 5.1. Fees. Licensee 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, Licensee’s use of the Services exceeds that for which it has paid in advance — whether due to 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 Licensee, and Licensee shall pay QSC, for the Service Fees associated with those additions.
- All fees are non-refundable, unless otherwise 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. Service Fees will be invoiced in accordance with the terms set forth in the applicable Order Form. Unless otherwise stated in the applicable Order Form, charges are due net thirty (30) days from the invoice date. If Licensee selects a payment method such as by credit card, bank transfer or SEPA, Licensee authorizes QSC’s payment processor to charge Licensee the Service Fee and any other charges Licensee 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 Licensee 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 Licensee not pay amounts when due, QSC may also (at its discretion and in addition to other remedies it may have) suspend Licensee’s access to the Services.
- 5.4. Taxes. The fees for the Services exclude all sales, value-added, use, or similar taxes unless expressly stated otherwise. To the maximum extent permitted by law, Licensee 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 price payable by Licensee to QSC.
6. PROPRIETARY RIGHTS
- 6.1. Services Ownership. Licensee 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"). Licensee 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 (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 Licensee no rights to use such content except as allowed by such third party.
- 6.2 Licensee Data. As between QSC and Licensee, all Licensee Data is owned exclusively by Licensee. Licensee Data shall be considered Confidential Information subject to the terms of this Agreement.
- 6.3 Feedback. QSC (and its 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 Licensee, the Users, or any other party relating to the Services. Licensee hereby irrevocably assigns any and all right, title, and interest in and to the Feedback to QSC, and waives any and all applicable moral or similar rights.
- 6.4. Publicity. By subscribing to the Services, and unless Licensee expressly states in writing that Licensee withholds permission, Licensee hereby acknowledges, agrees and authorizes QSC and its Affiliates to publicly present Licensee 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 Licensee. QSC expressly reserves all rights therein, including without limitation all related intellectual property and other proprietary rights, that are not expressly granted to Licensee pursuant to this Agreement. Nothing in this Agreement will be deemed to transfer the ownership thereof.
- 7.1. Confidential Information. “QSC undertakes to maintain the strictest secrecy with respect to all confidential information that comes to its knowledge within the scope of the performance of this Agreement, in particular business or trade secrets of the Licensee, and not to disclose or otherwise utilize such information.
- 7.2. Use and Disclosure Restrictions. Neither party shall use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement. Except as otherwise expressly permitted by this Agreement, each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees and contractors that need to know such Confidential Information for the purposes of this Agreement; provided, that, each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to, and solely to the extent required by, the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section. Each receiving party agrees to promptly report any breaches of this section to 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 Licensee. For any breach of such warranty, Licensee’s exclusive remedy is as provided in Section 4.2. NOTWITHSTANDING THIS SECTION, DURING A TRIAL PERIOD, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES.
- 8.2. By Licensee. Licensee represents and warrants that 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 Licensee or Users may have to a third party. Licensee further represents and warrants that Licensee and Users will comply by all laws, rules, and regulations that are applicable to use of the Services and that Licensee 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 Licensee’s warranties herein, or if QSC becomes aware of any inaccuracies in Licensee’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 for QSC.
- 8.3. Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTION 8.1, THE SERVICES ARE PROVIDED "AS IS" AND LICENSEE AGREES THAT LICENSEE’S USE OF THE SERVICES IS AT LICENSEE’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 NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. QSC MAKES NO WARRANTY THAT THE SERVICES WILL MEET LICENSEE’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. LICENSEE 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 LICENSEE’S OWN RISK AND THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’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 (a) defend, indemnify and hold harmless Licensee and Licensee’s officers, directors, employees and agents from and against any and all actual and alleged claims, damages, costs, losses, liabilities and expenses (including reasonable attorneys' fees) (collectively, "Claims") made or brought against Licensee by a third party alleging that the use of the Services as contemplated hereunder infringes the intellectual property rights of a third party, but only to the extent the alleged infringement is of intellectual property rights covering the United States, Germany, United Kingdom, or Australia, and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by QSC in a monetary settlement of such Claim; provided, that Licensee (a) promptly gives written notice of the Claim to QSC; (b) gives QSC sole control of the defense and settlement of the Claim (provided that QSC may not settle or defend any Claim unless it unconditionally releases Licensee of all liability); and (c) provides to QSC, at QSC's cost, all reasonable assistance. If QSC believes 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 Licensee 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 pre-paid fees covering the remainder of the Term after such termination.
- 9.2. Indemnification by Licensee. Licensee shall defend, indemnify and hold harmless QSC and its Affiliates, officers, directors, employees and agents from and against any and all Claims brought against QSC or its Affiliates by a third party arising out of or related to: (a) the Licensee Data or Licensee’s unlawful use of the Services (as opposed to the Services itself); (b) any Feedback Licensee provides; (c) Licensee’s breach of this Agreement, or inaccuracy in Licensee’s representations or breach of its warranties herein; (d) Licensee’s violation of the rights of another; or (e) Licensee 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 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 (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, EVEN IF LICENSEE 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 LICENSEE 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 AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT LICENSEE’S PAYMENT OBLIGATIONS UNDER SECTION 5 ABOVE.
- 10.3. Basis of the Bargain; Failure of Essential Purpose. LICENSEE 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 — Germany. With respect to Licencees domiciled in Germany:
- 10.4.1. SOLELY IN THE EVENT THAT, PURSUANT TO APPLICABLE LAW, THE LIABILITY FOREGOING LIABILITY EXCLUSION, LIMITATIONS, OR BOTH 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.
- 10.4.2. IN THE EVENT OF A SLIGHT NEGLIGENT INFRINGEMENT OF AN OBLIGATION WHICH IS MATERIAL FOR THE ACHIEVEMENT OF THE PURPOSE OF THE 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.
- 10.5. Local Law Provisions — Australia. With respect to Licensees domiciled in Australia, despite any other term of this Agreement, if the Licensee is a consumer for the purpose of the Australian Consumer Law:
- 10.5.1.1 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 ("Non-excludable Condition").
- 10.5.1.2 Except in relation to a Non-excludable Condition that by law cannot be limited, QSC's total liability to Licensee for a breach of any Non-excludable Condition is limited, at QSC's option to any one of:
- 10.5.1.2.1 Resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing the goods in respect of which the breach occurred; or
- 10.5.1.2.2 Supplying again or paying the cost of supplying again, the services in respect of which the breach occurred.
- 10.5.2 Consistent with Australian law, to the extent that QSC processes Personal Data as part of the Services on behalf of Licensees located in Australia, in the provision of the Services hereunder, the terms of the QSC Australia Data Protection Addendum, which are hereby incorporated by reference, shall apply.
- 10.6 Local Law Provisions — EU/EEA and Switzerland Data Processing. Consistent with the principles of the General Data Protection Regulation (the “GDPR”), to the extent that QSC processes Personal Data as part of the Services on behalf of Licensees located in the European Union or the European Economic Area, in the provision of the Services hereunder, the terms of the QSC GDPR Data Protection Addendum, which are hereby incorporated by reference, shall apply. For Licensees that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission, attached to the Data Protection Addendum, provide adequate safeguards for the transfer of Personal Data to QSC outside the European Economic Area.
- 11.1 Except as expressly stated otherwise herein, neither party may assign or 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 or transfer this Agreement to a successor to the business of such party by merger, sale of assets or otherwise. Any assignment or transfer, or attempted assignment 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 the Licensee. QSC will make such a transfer after the conclusion of the Agreement. For Licensees domiciled in the European Economic Area, Switzerland, Africa, or the Middle East, QSC will assign the Agreement to:
QSC EMEA GmbH
Kleines Feldlein 7
12. DISPUTE RESOLUTION; ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES LICENSEE TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH QSC AND ITS AFFILIATES AND LIMITS THE MANNER IN WHICH LICENSEE CAN SEEK RELIEF FROM QSC.
- 12.1. Attempt to Resolve Informally. Licensee and QSC agree that the parties will notify each other in writing of any dispute, claim, or controversy arising out of or relating to this Agreement or the Services or the breach, termination, enforcement, interpretation or validity of this Agreement (a "Dispute") within thirty (30) days of when it arises 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 action seeking 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. Licensee and QSC agree that any arbitration or other proceeding must be commenced within one (1) year after the Dispute arose; otherwise, Licensee and QSC agree that the claim is permanently barred (which means that Licensee will no longer have the right to assert a claim regarding the Dispute).
- 12.2. No Class Arbitrations, Class Actions or Representative Actions. LICENSEE AND QSC AGREE THAT ANY DISPUTE IS PERSONAL TO LICENSEE 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.
- 12.3. Binding & Final Arbitration. Except for a Dispute in which either party seeks to bring an individual action in small claims court or 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, Licensee and QSC each: (a) waive the right to have any and all Disputes resolved in a court; and (b) waive the right to a jury trial. Instead, Licensee 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).
- 12.3.1. Licensee 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.
- 12.3.2. 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:
- 220.127.116.11. Arbitral Body; Jurisdiction and Location. Licensee and QSC agree that: (a) any arbitration will occur in Orange County, California; (b) arbitration will be administered by JAMS pursuant to the appropriate JAMS rules, confidentially, and by a single arbitrator; (c) all arbitration proceedings, including but not limited to any hearing or hearings, will be conducted in English; and (d) judgment on the Award may be entered by any court having jurisdiction.
- 18.104.22.168. Authority of Arbitrator. As limited by the FAA, this Agreement and applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, and (b) the authority to grant any remedy that would otherwise be available in court including reasonable 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.
- 22.214.171.124. 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, Licensee either (a) acknowledges and agrees that Licensee has read and understands the rules of JAMS or (b) waives Licensee’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.
- 12.3.3. 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:
- 126.96.36.199. Arbitral Body; Jurisdiction and Location. Licensee and QSC agree that” (a) any arbitration will occur in Frankfurt, Germany (b) 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; (c) all arbitration proceedings, including but not limited to any hearing or hearings, will be conducted in English; and (d) judgment on the award may be entered by any court having jurisdiction.
- 188.8.131.52. Authority of Arbitrator. As limited by this Agreement and applicable ICC rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, and (b) the authority to grant any remedy that would otherwise be available in court including reasonable 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.
- 184.108.40.206. Rules of ICC. The rules of, and additional information about, the ICC are available on the ICC website at iccwbo.org/dispute-resolution-services/arbitration/, as may be updated from time to time. By agreeing to be bound by this Agreement, Licensee acknowledges and agrees that Licensee has read and understands the rules of the ICC.
- 12.3.4 Changes. Notwithstanding the provisions herein related to modifications of this Agreement, if QSC revises this Section after the date Licensee first accepted this Agreement (or accepted any subsequent changes to this Agreement), Licensee 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, Licensee’s written notice must include Licensee’s full name and clearly indicate Licensee’s intent to reject changes to this Section. By rejecting such changes, Licensee is agreeing to resolve disputes in accordance with the last version of this Section Licensee accepted.
- 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 not be amended except in writing signed by the party to be bound. 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 12.2 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. Licensee agrees to comply with all such export laws and regulations. Licensee 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. Licensee acknowledges that the Services are designed with capabilities for Licensee and Users to access the Services without regard to geographic location and to transfer or move Licensee Data. Licensee is solely responsible for the authorization and management of Services as well as the export control and geographic transfer of Licensee Data.
- 13.5.2. Anti-Bribery and Anti-Corruption. Licensee and QSC shall comply with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and the anti-corruption laws of other countries, to the extent applicable. Licensee agrees that Licensee 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 Licensee learns of any violation of the foregoing restriction, Licensee 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 the earliest of: (i) actual receipt by the other party; or (ii) two business days after deposit with a nationally recognized overnight courier service, and addressed in each case as follows:
If to Licensee: At the corresponding address stated on the Order Form.
If to QSC: QSC, LLC
ATTN: Legal Department
1675 MacArthur Boulevard
Costa Mesa, CA 92626
If to QSC EMEA: QSC EMEA GmbH
Kleines Feldlein 7
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 subsection.
- 13.7. Governing Law. This Agreement and Licensee’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 law principles. Licensee 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.
- 13.8. Additional Terms. If Licensee submits a purchase order or similar document in connection with Licensee’s subscription for the Services, any terms or conditions contained in Licensee’s purchase order or other document or otherwise proposed by Licensee 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. Any conflict between the terms and conditions of this Agreement and the terms and conditions of any purchase order or other document submitted by Licensee 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. Licensee agrees that any cause of action arising out of or related to the Services must commence within one year after the first occurrence of the cause of action; otherwise, such cause of action is permanently barred.