2.1 Grant of Rights. quartermath grants to Customer a non-exclusive, non-transferable and world-wide right to use the Cloud Service (including its implementation and configuration), Cloud Materials and Documentation solely for Customer’s and its Affiliates’ internal business operations. Permitted uses and restrictions of the Cloud Service also apply to Cloud Materials and Documentation.
2.2 Authorized Users. Customer may permit Authorized Users to use the Cloud Service. Usage is limited to the Usage Metrics and volumes stated in the Order Form. Access authorizations for the Cloud Service may not be used by more than one individual, but may be transferred from one individual to another if the original user is no longer permitted to use the Cloud Service. Customer is responsible for breaches of the Agreement caused by Authorized Users.
2.3 Acceptable Use Policy. With respect to the Cloud Service, Customer will not: (a) disassemble, decompile, reverse-engineer, copy, translate or make derivative works, (b) transmit any content or data that is unlawful or infringes any intellectual property rights, or (c) circumvent or endanger its operation or security.
2.4 Verification of Use. Customer will monitor its own use of the Cloud Service and report any use in excess of the Usage Metrics and volume. Quartermath may monitor use to verify compliance with Usage Metrics, volume and the Agreement.
2.5 Suspension of Cloud Service. Quartermath may suspend use of the Cloud Service if continued use may result in material harm to the Cloud Service or its users. QUARTERMATH will promptly notify Customer of the suspension. QUARTERMATH will limit the suspension in time and scope as reasonably possible under the circumstances.
2.6 Third Party Web Services. The Cloud Service may include integrations with web services made available by third parties that are accessed through the Cloud Service and subject to terms and conditions with those third parties. These third party web services are not part of the Cloud Service and the Agreement does not apply to them.
2.7 Mobile Access to Cloud Service. Authorized Users may use certain Cloud Services through mobile applications obtained from thirdparty websites such as Android or Apple app store. In addition to such usage representing use of the Cloud Services under the Agreement, the use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
3.1 Provisioning. Quartermath provides access to the Cloud Service as described in the Agreement.
3.2 Support. Quartermath provides support for the Cloud Service as referenced in the Order Form.
3.3 Security. Quartermath uses reasonable security technologies in providing the Cloud Service. As a data processor, Quartermath will implement technical and organizational measures referenced in the Order Form to General Terms and Conditions for Quartermath Cloud Services secure personal data processed in the Cloud Service in accordance with applicable data protection law.
3.4 Modifications. (a) The Cloud Service and Quartermath Policies may be modified by Quartermath. Quartermath will inform Customer of modifications by email, the support portal, release notes, Documentation or the Cloud Service. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features for the Cloud Service, which Customer may use subject to the then-current Supplement and Documentation. (b) If Customer establishes that a modification is not solely an enhancement and materially reduces the Cloud Service, Customer may terminate its subscriptions to the affected Cloud Service by providing written notice to Quartermath within thirty days after receipt of Quartermath’s informational notice.
3.5 Analyses. Quartermath may create analyses utilizing, in part, Customer Data and information derived from Customer’s use of the Cloud Service and Consulting Services. Analyses will anonymize and aggregate information, and will be treated as Cloud Materials. Examples of how analyses may be used include: optimizing resources and support; research and development; automated processes that enable continuous improvement, performance optimization and development of new Quartermath products and services; verification of security and data integrity; internal demand planning; and data products such as industry trends and developments, indices and anonymous benchmarking.
4.1 Customer Data. Customer is responsible for the Customer Data and entering it into the Cloud Service. Customer grants to Quartermath a nonexclusive right to process Customer Data solely to provide and support the Cloud Service.
4.2 Personal Data. Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
4.3 Security. Customer will maintain reasonable security standards for its Authorized Users’ use of the Cloud Service.
4.4 Access to Customer Data. (a) During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. (b) Before the Subscription Term expires, Customer may use Quartermath’s self-service export tools (as available) to perform a final export of Customer Data from the Cloud Service. (c) At the end of the Agreement, Quartermath will delete the Customer Data remaining on servers hosting the Cloud Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement. (d) In the event of third party legal proceedings relating to the Customer Data, Quartermath will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.
5.2 Taxes. Fees and other charges imposed under an Order Form will not include taxes, all of which will be for Customer’s account. Customer is responsible for all taxes, other than Quartermath’s income and payroll taxes. Customer must provide to Quartermath any valid tax-exemption permits or certificates prior to signing an Order Form. If Quartermath is required to pay taxes (other than its income and payroll taxes), Customer will reimburse Quartermath for those amounts and indemnify Quartermath for any taxes and related costs paid or payable by Quartermath attributable to those taxes.
6.1 Term. The Subscription Term is as stated in the Order Form.
6.2 Termination. A party may terminate the Agreement: (a) upon thirty days written notice of the other party’s material breach unless the breach is cured during that thirty day period, (b) as permitted under Sections 3.4(b), 7.2(b), 7.4(c), or 8.1(c) (with termination effective thirty days after receipt of notice in each of these cases), or (c) immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 12.6.
6.3 Refund and Payments. For termination by Customer or an 8.1(c) termination, Customer will be entitled to: (a) a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination, and (b) a release from the obligation to pay fees due for periods after the effective date of termination.
6.4 Effect of Expiration or Termination. Upon the effective date of expiration or termination of the Agreement: (a) Customer’s right to use the Cloud Service and all Quartermath Confidential Information will end, (b) Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement, and (c) termination or expiration of the Agreement does not affect other agreements between the parties. 6.5 Survival. Sections 1, 5, 6.3, 6.4, 6.5, 8, 9, 10, 11, and 12 will survive the expiration or termination of the Agreement.
7.1 Compliance with Law. Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with: (a) in the case of Quartermath, the operation of Quartermath’s business as it relates to the Cloud Service, and (b) in the case of Customer, the Customer Data and Customer’s use of the Cloud Service.
7.2 Good Industry Practices. Quartermath warrants that it will provide the Cloud Service: (a) in substantial conformance with the Documentation; and (b) with the degree of skill and care reasonably expected from a reasonably skilled and experienced global supplier of services substantially similar in nature and complexity of the Cloud Service.
7.3 Remedy. Customer’s sole and exclusive remedies and Quartermath’s entire liability for breach of the warranty under Section 7.2 will be: (a) the re-performance of the alleged deficient Cloud Service, and (b) if Quartermath fails to re-perform, Customer may terminate its subscription for the affected Cloud Service. Any termination must occur within three months of Quartermath’s failure to re-perform.
7.4 System Availability. (a) Quartermath warrants to maintain an average monthly system availability for the production system of the Cloud Service as defined in the applicable service level agreement or Supplement (“SLA”). (b) Customer’s sole and exclusive remedy for Quartermath’s breach of the SLA is the issuance of a credit in the amount described in the SLA. When the validity of the service credit is confirmed by Quartermath in writing (email permitted), Customer may apply the credit to a future invoice for the Cloud Service or request a refund for the amount of the credit if no future invoice is due. (c) In the event Quartermath fails to meet the SLA (i) for four consecutive months, or (ii) for five or more months during any twelve months period, or (iii) at a system availability level of at least 95% for one calendar month, Customer may terminate its subscriptions for the affected Cloud Service by providing Quartermath with written notice within thirty days after the failure.
7.5 Warranty Exclusions. The warranties in Sections 7.2 and 7.4 will not apply if: (a) the Cloud Service is not used in accordance with the Agreement or Documentation, (b) any non-conformity is caused by Customer, or by any product or service not provided by Quartermath, or (c) the Cloud Service was provided for no fee.
7.6 Disclaimer. Except as expressly provided in the Agreement, neither Quartermath nor its subcontractors make any representation or warranties, and Quartermath and its subcontractors disclaim all representations, warranties, terms, conditions or statements, which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, all of which are hereby excluded to the fullest extent permitted by law including the implied conditions, warranties or other terms as to merchantability, suitability, originality, or fitness for a particular use or purpose. Further, except as expressly provided in this Agreement, neither Quartermath nor its subcontractors make any representations, warranties, terms, conditions or statements of non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of Quartermath or product roadmaps in obtaining subscriptions for any Cloud Service.
8.1 Claims Brought Against Customer. (a) Quartermath will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of the Cloud Service infringes or misappropriates a patent claim, copyright, or trade secret right belonging to such third party. Quartermath will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement Quartermath enters into) with respect to these claims. (b) Quartermath’s obligations under Section 8.1 will not apply if the claim results from (i) Customer’s breach of Section 2, (ii) use of the Cloud Service in conjunction with any product or service not provided by Quartermath, or (iii) use of the Cloud Service provided for no fee. (c) In the event a claim is made or likely to be made, Quartermath may (i) procure for Customer the right to continue using the Cloud Service under the terms of the Agreement, or (ii) replace or modify the Cloud Service to be non-infringing without a material decrease in functionality. If these options are not reasonably available, Quartermath or Customer may terminate Customer’s subscription to the affected Cloud Service upon written notice to the other.
8.2 Claims Brought Against Quartermath. (a) Customer will defend Quartermath against claims brought against Quartermath and subcontractors by any third party related to Customer Data. (b) Customer will indemnify Quartermath against all damages finally awarded against Quartermath and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
8.3 Third Party Claim Procedure. (a) The party against whom a third party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defense. (b) The party that is obligated to defend a claim will have the right to fully control the defense. (c) Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
8.4 Exclusive Remedy. The provisions of Section 8 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.
9.1 Unlimited Liability. Neither party will exclude or limit its liability for damages resulting from: (a) the parties’ obligations under Section 8.1(a) and 8.2, (b) unauthorized use or disclosure of Confidential Information, (c) either party’s breach of its data protection and security obligations that result in an unauthorized use or disclosure of personal data, (d) fraud or fraudulent misrepresentation, (e) death or bodily injury arising from either party’s negligence or willful misconduct, (f) any failure by Customer to pay any fees due under the Agreement, or (g) any liability that cannot be excluded or limited by applicable law.
9.2 Liability Cap. Subject to Sections 9.1 and 9.3, and regardless of the basis of liability (whether arising out of liability under breach of contract, tort (including but not limited to negligence), misrepresentation, breach of statutory duty, breach of warranty, claims by third parties arising from any breach of this Agreement), the maximum aggregate liability of either party (or its respective Affiliates or Quartermath’s subcontractors) arising out of this Agreement to the other or any other person or entity for all events (or series of connected events) arising in any twelve month period will not exceed the annual subscription fees paid for the applicable Cloud Service directly causing the damage for that twelve month period. Any “twelve month period” commences on the Subscription Term start date or any of its yearly anniversaries.
9.3 Exclusion of Damages. Subject to Section 9.1: (a) Regardless of the basis of liability (whether arising out of liability under breach of contract, tort (including but not limited to negligence), misrepresentation, breach of statutory duty, breach of warranty, claims by third parties arising from any breach of this Agreement), under no circumstances shall either party (or their respective Affiliates or Quartermath’s subcontractors) be liable to the other party or any third party for any loss or damage (whether or not the other party had been advised of the possibility of such loss or damage) in any amount, to the extent that such loss or damage is (i) consequential, indirect, special or punitive; or (ii) for any loss of profits, loss of business, loss of business opportunity, loss of goodwill, loss resulting from work stoppage or loss of revenue or anticipated savings, whether any such loss or damage is direct or indirect, and (b) Quartermath will not be liable for any damages caused by any Cloud Service provided for no fee.
9.4 Risk Allocation. The Agreement allocates the risks between Quartermath and Customer. The fees for the Cloud Service and Consulting Services reflect this allocation of risk and limitations of liability.
10.1 Quartermath Ownership. Quartermath owns all intellectual property rights in and related to the Cloud Service, Cloud Materials, Documentation, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer are reserved to Quartermath.
10.2 Customer Ownership. Customer retains all rights in and related to the Customer Data. Quartermath may use Customer provided trademarks solely to provide and support the Cloud Service.
10.3 Non-Assertion of Rights. Customer covenants, on behalf of itself and its successors and assigns, not to assert against Quartermath any rights, or any claims of any rights, in any Cloud Service, Cloud Materials, Documentation, or Consulting Services.
11.1 Use of Confidential Information. (a) The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 11. Customer will not disclose the Agreement or the pricing to any third party. (b) Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 11. (c) In the event of legal proceedings relating to the Confidential Information, the receiving party will reasonably cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Confidential Information.
11.2 Exceptions. The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (b) is generally available to the public without breach of the Agreement by the receiving party, (c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or (d) the disclosing party agrees in writing is free of confidentiality restrictions.
11.3 Publicity. Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that Quartermath may use Customer's name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of Quartermath's marketing efforts (including reference calls and stories, press testimonials and site visits).
12.1 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
12.2 No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
12.3 Electronic Signature. Electronic signatures that comply with applicable law are deemed original signatures.
12.4 Regulatory Matters. Quartermath Confidential Information may be subject to export control laws of various countries, including the laws of the United States and the United Kingdom. Customer will not submit Quartermath Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export Quartermath Confidential Information to countries, persons or entities if prohibited by export laws.
12.5 Notices. All notices will be in writing and given when delivered to the address set forth in an Order Form with copy to the legal department. Notices by Quartermath relating to the operation or support of the Cloud Service and those under Sections 3.4 and 5.1 may be in the form of an electronic notice to Customer’s authorized representative or administrator identified in the Order Form.
12.6 Assignment. Without Quartermath’s prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party.
12.7 Subcontracting. Quartermath may subcontract parts of the Cloud Service or Consulting Services to third parties. Quartermath is responsible for breaches of the Agreement caused by its subcontractors.
12.8 Relationship of the Parties. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
12.9 Force Majeure. Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
12.10 Governing Law. The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of England, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in London. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
12.11 Entire Agreement. The Agreement constitutes the complete and exclusive statement of the agreement between Quartermath and Customer relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that in entering into the Agreement it has not relied on any representation, discussion, collateral contract or other assurance except those expressly set out in the Agreement. Each party waives all rights and remedies which, but for this section, might otherwise be available to it in respect of any such representation, discussion, collateral contract or other assurance. Except as permitted under Section 3.4, this Agreement may be modified only by a writing signed by both parties. The Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order furnished by one party to the other, and any additional terms and conditions in any such purchase order shall have no force and effect, notwithstanding the non-furnishing party’s acceptance or execution of such purchase order.
12.12 Contracts Rights of Third Parties. Notwithstanding any other provision in this Agreement, nothing in this Agreement shall create or confer (whether expressly or by implication) any rights or other benefits whether pursuant to the Contracts or otherwise in favour of any person not a party hereto.