Standard Terms and Conditions

cQuant.IO

Standard Terms and Conditions

These Standard Terms and Conditions (“Terms and Conditions”) apply to, and are incorporated by reference into, an order form (“Order Form”) that has been signed by cQuant.IO, Inc. (“cQuant”) and the cQuant customer identified in the Order Form (“Customer”). The signed Order Form, together with these Terms and Conditions, state the terms of a binding contract (this “Service Contract”) under which cQuant shall provide, and Customer shall purchase and pay for, the services described in the Order Form (the “Services”).

ARTICLE 1:  Introductory Provisions

Services may consist of the following:

  1. access to the hosted cQuant Analytics Platform (“Hosted Analytics Services”), which enable Customers to access and use a variety of models, including econometric, statistical, mathematical, problem solving, and logistical models (each a “Model”), that are hosted by or on behalf of cQuant in a proprietary web application; and
  2. professional services (“Professional Services”), which are custom software development services or data-related services that have been negotiated by cQuant and Customer and have been specified in an Order Form.

ARTICLE 2:  Definitions

The definitions stated in this Article will apply throughout this Service Contract. Other definitions are stated elsewhere in this Service Contract.

“Content” means, without limitation, any and all information, data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials. Models are not included in “Content”.

“cQuant Technology” means: (a) Intellectual Property contained in or otherwise related to one or more Models, to any Hosted Analytics Services, or to any other information or materials provided by cQuant to Customer; (b)  Intellectual Property and proprietary technology owned by cQuant or its suppliers before the Effective Date; and (c) cQuant Work Product. For clarity, cQuant Technology does not include Customer Data.

“cQuant Work Product” means all work product, including Models (but excluding Customer Data incorporated into any Models), and all Intellectual Property embodied therein, that was created or developed by cQuant, alone or in concert with others, in the course of performing Professional Services.

“Customer Data” means Content provided for, imported into, or uploaded to the Site by Customer or on Customer’s behalf, in the course of Customer’s proper use of Hosted Analytics Services.

“Customer Work Product” means all work product, and the Intellectual Property therein, that was created or developed solely by Customer, including such work product that was created or developed by using Hosted Analytics Services.

“Documentation” means all specifications, user manuals, and other technical materials relating to the Services.

“Effective Date” of this Service Contract means the date on which the Order Form has been signed by cQuant and Customer.

“Intellectual Property” means (a) copyrights, mask work rights, and moral rights; (b) patents, patent applications, invention disclosures, and industrial property rights; (c) trade secrets and know-how; (d) trademarks, tradenames, service marks, domain names, and URLs; (e) trade dress, industrial design rights, and other design rights; (f) all other items commonly regarded as intellectual property anywhere in the world; (g) all registrations, applications, renewals, extensions, or reissues of any of the foregoing; and (h) all rights in, to, or under any of the foregoing arising under a license, lease, or other legal instrument.

“License Term”, for a Hosted Analytics Services specified in the Order Form, if any, means the period during which a specified number of Users are permitted and licensed to use that Hosted Analytics Services. The License Term for any Hosted Analytics Services is stated in the Order Form.

“person”, whether or not capitalized, means any natural person and any corporation, limited liability company, government or governmental agency, or other legal entity.

“Site” means the cQuant website through which Hosted Analytics Services are provided.

“third party” means any person other than cQuant or Customer.

“User” is a person authorized in accordance with this Service Contract to access, use, and execute Hosted Analytics Services.

ARTICLE 3:  Hosted Analytics Services

3.1 License Grant. cQuant hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license (the “License”), which (a) permits Customer and Users to access, use, and execute the Hosted Analytics Services specified in the Order Form, and (b) is subject in all respects to the limitations stated in Section 3.2 and all other provisions of this Service Contract.

3.2 Limitations on the License 

  1. All rights not expressly granted to Customer are reserved to cQuant. Except as expressly stated to the contrary in this Service Contract, no express or implied license or right of any kind is granted to Customer regarding any Hosted Analytics Services, cQuant Technology, or any part of the foregoing, including the right to obtain possession of any source code, data, or Documentation relating to cQuant Technology. The Parties disclaim the existence or granting of any implied licenses.
  2. The License permits access to and use of the Hosted Analytics Services ordered by Customer (i) only during the License Term, and (ii) only for Customer’s internal business purposes. Any other access or use is prohibited. Without limiting the generality of the foregoing, Customer may use, reproduce, distribute, create derivative works of, perform, display, or execute a Model solely in the course of Customer using the Hosted Analytics Services over the Internet, in the manner in which it was intended to be used, and not otherwise.
  3. Customer will not remove any copyright or other proprietary notice applicable to any Model or Hosted Analytics Services. Nothing in this Service Contract restricts Customer’s use, distribution, or creation of derivative works with respect to any Customer Data.

3.3 Other Prohibited Acts. Customer shall not: (a) permit or suffer any person to access or use Hosted Analytics Services ordered by Customer, other than the specific Users for whom Customer has paid a fee and has received unique login credentials; (b) rent, lease, loan, or sell access to Hosted Analytics Services to any third party; (c) interfere with, disrupt, alter, translate, or modify any Hosted Analytics Services or any part thereof; (d) reverse engineer or access any Hosted Analytics Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions, or graphics of any Hosted Analytics Services; or (iii) copy any of the ideas, features, functions, or graphics embodied in any Hosted Analytics Services; (e) without cQuant’s express written permission, introduce software or automated agents or scripts to any Hosted Analytics Services so as (A) to produce multiple accounts, generate automated searches, requests, and queries, or (B) to strip or mine data from any Hosted Analytics Services; (f) perform or publish any performance or benchmark tests or analyses relating to any Hosted Analytics Services or the use thereof; or (g) cover or obscure any page or part of any Hosted Analytics Services via HTML/CSS, scripting, or any other means, if any.

3.4 Usernames and Passwords. cQuant shall furnish to each User (or shall allow each User to specify) a unique username and password to enable such User to access any Hosted Analytics Services specified in the Order Form. Customer will ensure that each username and password will be used only by the specific, named User to whom it was issued, i.e., this is not a software license of the type commonly referred to as a “concurrent use license”. Customer is responsible for maintaining the confidentiality of all Users’ usernames and passwords, and is solely responsible for all activities that occur under those usernames. Customer agrees (a) not to allow a third party to use Customer’s account, usernames or passwords at any time; and (b) to notify cQuant promptly of any actual or suspected (i) unauthorized use of Customer’s account, usernames or passwords, or (ii) other breach or suspected breach of this Service Contract. cQuant reserves the right to terminate any username and password, which cQuant reasonably determines may have been used by an unauthorized third party. A User license may not be shared or used by more than one User. Customer, upon notification to cQuant, may reassign a particular User’s rights with regard to the Hosted Analytics Services specified in the Order Form, if that User no longer requires access to the Hosted Analytics Services specified in the Order Form, e.g., because he or she has been reassigned to a different position within Customer’s organization or because his or her employment with Customer has terminated; such reassignment must include all the rights of the User in question.

3.5 Not a Sale. This is not an agreement of purchase or sale; computer software and other cQuant Technology involved in the provision of Hosted Analytics Services is not offered for sale to cQuant customers in the ordinary course of cQuant’s business.

ARTICLE 4. Intellectual Property

4.1 cQuant Technology. cQuant Technology, which term includes cQuant Work Product, is the exclusive property of cQuant or its suppliers. Customer shall assign and hereby does assign, convey, and quitclaim unto cQuant all Customer’s right, title, and interest in, to, and under cQuant Technology. Customer hereby assigns to cQuant any suggestions, ideas, enhancement requests, feedback, and recommendations, and all other Content provided by Customer, related to any Models, Hosted Analytics Services, or other cQuant Technology, except for Customer Data.

4.2 Customer Work Product. Customer Work Product is the sole and exclusive property of Customer.

4.3 Commingling of Work Product. The incorporation of any Customer Work Product into cQuant Work Product will not affect the ownership of such Customer Work Product or the cQuant Work Product.

4.4 Assistance in Perfecting Rights. Customer will perform all acts that are reasonably necessary or desirable to permit and assist cQuant in obtaining, perfecting, and enforcing cQuant’s rights and benefits in, to, and under Intellectual Property embodied in cQuant Technology. If cQuant is unable for any reason to secure the signature of Customer or any of Customer’s employees or contractors on any document necessary or desirable in connection with the filing, prosecution, registration, or memorialization of cQuant’s rights in any cQuant Technology, Customer hereby irrevocably designates and appoints cQuant and cQuant’s duly authorized officers and agents as Customer’s agents and attorneys-in-fact to do so in the name, place, and stead of Customer, all with the same legal force and effect as if the document or instrument in question were executed by Customer. The foregoing is deemed a power coupled with an interest and is irrevocable.

ARTICLE 5. Professional Services

5.1 Fees and Expense Reimbursement. cQuant’s fees and other charges for Professional Services will be as stated in the applicable Order Form. Unless otherwise stated in an Order Form, Customer will reimburse cQuant for all reasonable out-of-pocket expenses actually incurred by cQuant in performing Professional Services. cQuant will seek Customer approval before incurring reimbursable expenses. cQuant is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing Professional Services.

5.2 Work Orders. Each Order Form for Professional Services will contain, as an attachment, a full description of the Professional Services to be rendered by cQuant thereunder, which attachment is referred to in this Service Contract as a “Work Order”. Each Work Order will be deemed an integral part of the Order Form to which it is attached. Work Orders will include all material information regarding the Professional Services project, including, but not limited to: a reasonably detailed description of the Professional Services to be rendered; the price or compensation to be paid by Customer for the Professional Services, itemized in reasonable detail; any applicable deadlines, milestones, or special requirements; and any other material terms negotiated by the Parties.

5.3 Independent Contractor. With respect to the provision of Professional Services, cQuant is an independent contractor of Customer. Nothing in this Service Contract or any Order Form creates a partnership, agency, joint venture, employment, or similar relationship. cQuant will not be entitled to any of the benefits that Customer may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing, or retirement benefits. cQuant is not authorized to make any representation, contract, or commitment on behalf of Customer unless specifically requested or authorized in writing to do so by a Customer manager.

ARTICLE 6. Customer Data

6.1 Customer’s Data Warranty. Customer represents and warrants that the use of Customer Data by Customer or cQuant will not violate the Intellectual Property, contractual, or other rights of any third party and will not contain any virus, worm or other malicious computer programming code capable of damaging any Hosted Analytics Services or the systems that provide the same (“Customer’s Data Warranty”).

6.2 Systems Use and Security. cQuant shall provide reasonable logical and physical security for Customer Data, which will include, but will not be limited to: (a) a defined security administration practice and process including account and password administration; and (b) ensuring that only cQuant employees and contractors who need to access Customer Data for cQuant to provide Hosted Analytics Services will have such access. cQuant may modify its security systems and procedures from time to time, in its discretion. Notwithstanding the foregoing provisions of this paragraph, cQuant may delegate and or all its obligations under this Section 6.2 to a reputable professional hosting provider, and cQuant will deemed released from performing any of the obligations so delegated.

6.3 Data Loss. cQuant endeavors to employ best industry practices, including backing up Customer Data, to avoid loss, corruption, or destruction of Customer Data (“Data Loss”). Customer shall archive, keep, and maintain a current copy of all Customer Data, at Customer’s sole cost and expense. If a Data Loss occurs because of cQuant’s negligence or greater fault, cQuant will engage a professional data recovery expert or firm, at cQuant’s expense, in an effort to recover the Customer Data; provided, however, that cQuant will not be required to expend more than $10,000 in such recovery efforts for any single Data Loss or series of related Data Losses. If a Data Loss occurs as the result of any cause other than cQuant’s negligence or greater fault, and Customer requests cQuant to perform recovery services with respect to that Data Loss: (a) Customer shall pay cQuant for such recovery services at cQuant’s then-current time and materials rates, regardless of whether cQuant’s recovery services are successful; and (b) cQuant’s recovery services will be without warranty of any kind. Except as expressly stated above in this paragraph, cQuant will incur no liability or obligation as a result of any Data Loss, regardless of whether the Data Loss results from the negligence or greater fault of cQuant.

6.4 Access to Customer Data On Termination

  1. Except as provided in subsection “(b)”, if Customer’s access to or subscription for Hosted Analytics Services is terminated, and if Customer requests an electronic copy of its Customer Data in writing within 30 days after such termination, cQuant shall comply with the request. cQuant may delete permanently all Customer Data at any time more than 30 days after Customer’s access to or subscription for Hosted Analytics Services is terminated, regardless of the circumstances of termination.
  2. cQuant may suspend Customer’s access to Customer Data throughout any period during which Customer is delinquent in paying any amount owing to cQuant for Hosted Analytics Services. If Customer remains delinquent for 10 days or more after receiving written notice of the delinquency from cQuant, cQuant in its discretion may delete all Customer Data and will not be required to retain or provide a copy of the Customer Data so deleted.

6.5 cQuant’s Collection and Use of Customer Data and Usage Data. cQuant will not disclose Customer Data to any third party except in anonymized and aggregated form and will not knowingly and intentionally use Customer Data for any purpose other than rendering Services to Customer. cQuant collects data regarding the usage of Hosted Analytics Services; the usage data so collected may include, without limitation, data set sizes, Model run-times, and frequency of Model runs. Customer hereby grants cQuant permission to disclose such usage data to third parties in anonymized and aggregated form.

6.6 Customer Logos. Customer hereby grants cQuant a non-exclusive, worldwide, royalty-free, and fully-paid license to display Customer’s logos, so long as no representation is made expressly or impliedly that Customer endorses cQuant or its products or services.

ARTICLE 7. Payment

7.1 Charges. Customer shall pay all fees to Customer’s account in accordance with the billing terms in effect at the time a fee is due and payable. Unless mutually agreed otherwise, payments must be made in advance. All payment obligations are non-cancelable, and all amounts paid or prepaid are nonrefundable. cQuant may require a valid credit card as a condition to signing up for a Hosted Analytics Services. An individual who is authorized to act as license administrator on behalf of Customer (“License Administrator”) may add license rights by executing an additional or supplemental Order Form and paying the applicable fees. cQuant reserves the right to modify its fees and charges and to introduce new charges at any time, upon 30 days’ prior notice to Customer, which notice may be provided by email, except that cQuant may not modify the fees applicable to any period for which Customer has prepaid with cQuant’s consent.

7.2 Billing

  1. cQuant charges and collects in advance for Hosted Analytics Services. Professional Services will be billed as stated in the applicable Order Form or Work Order.
  2. Any amounts not paid to cQuant when due will bear interest at the lesser of 1.5% per month or the maximum legal rate. cQuant may suspend its performance and discontinue all services to Customer, including Services under this Service Contract and other services, until Customer’s account is brought current.
  3. Customer shall provide cQuant with complete and accurate billing and contact information. This information includes Customer’s legal company name, street address, email address, and the name and telephone number of an authorized billing contact and License Administrator. Customer shall update its billing and contact information within 30 days after any change occurs. Customer’s furnishing of false billing or contact information constitutes grounds for cQuant’s termination of Services.

7.3 Taxes

  1. cQuant’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for the payment of all such taxes, levies, or duties, excluding only United States taxes based solely on cQuant’s income.
  2. No part of cQuant’s compensation will be subject to withholding by Customer for the payment of any taxes, including, without limitation, social security, federal, state, local, and payroll. Customer will regularly report all payments made to cQuant to the appropriate federal, state, and local agencies, if and as required by law.
  3. cQuant is solely responsible for filing all tax returns and making all tax payments required in connection with the performance of Services.

ARTICLE 8. cQuant’s Warranties and Disclaimers

8.1 cQuant’s Limited Warranties, including Uptime Warranty. Subject to the disclaimers, limitations, and restrictions stated in this Service Contract, cQuant provides the following limited warranties: (a) that cQuant will provide Hosted Analytics Services in a manner consistent with general industry standards applicable to technical subscription services similar to the Hosted Analytics Services; and that the Hosted Analytics Services will materially conform to cQuant’s then-current Documentation when used under normal circumstances and in accordance with cQuant’s recommendations; (b) cQuant will perform Professional Services in a good and workmanlike manner; and (c) that Customer’s use of any cQuant Work Product or Hosted Analytics Services in a manner expressly authorized by cQuant in this Service Contract will not infringe the Intellectual Property rights of any third party (the limited warranty stated in subsection “(c)” being the “Noninfringement Warranty”). In addition to the warranties stated above in this paragraph, with respect to Hosted Analytics Services, cQuant provides the Uptime Warranty, as defined in cQuant’s standard Service Level Agreement, Exhibit A.

8.2 Disclaimers. The limited warranties stated in Section 8.1 (collectively, “cQuant’s Limited Warranties”) are the sole and exclusive warranties made with respect to any Services and are made to Customer only; no other person may assert a claim for the breach of any of cQuant’s Limited Warranties. EXCEPT FOR CQUANT’S LIMITED WARRANTIES, THE SERVICES ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY WHATSOEVER. CQUANT DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: CQUANT DOES NOT WARRANT THAT ANY SERVICE, INCLUDING ANY MODELS, WILL BE ERROR-FREE; AND EXCEPT AS EXPRESSLY STATED IN THE UPTIME WARRANTY, CQUANT DOES NOT WARRANT THAT ANY HOSTED ANALYTICS SERVICES WILL BE CONTINUOUS OR UNINTERRUPTED. ALL SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CQUANT IS NOT RESPONSIBLE FOR, AND CQUANT’S LIMITED WARRANTIES DO NOT COVER, ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

ARTICLE 9. Indemnification

9.1 By cQuant, for breach of the Noninfringement Warranty 

  1. Subject to Section 9.3, cQuant will indemnify, defend, and hold harmless Customer from and against any third party claim, demand, suit, proceeding, or cause of action (“Claim”) asserted against Customer, alleging facts that, if true, establish a breach of the Noninfringement Warranty (“Infringement Claim”).
  2. If any portion of the Services becomes, or in cQuant’s opinion is likely to become, the subject of an Infringement Claim, cQuant may, at cQuant’s option, do any or all the following:
    procure for Customer the right to continue using the allegedly infringing Services;
    replace the allegedly infringing Services with non-infringing services that do not materially impair the functionality of the Services;
    modify the allegedly infringing Services so that they become non-infringing; or
    terminate the allegedly infringing Services, and refund to Customer any fees actually prepaid by Customer with respect to the unexpired portion of the License Term.
    If cQuant chooses the option stated in clause “(iv)”, then upon such termination, Customer will immediately cease all use of the allegedly infringing Services.
  3. Notwithstanding any other provision of this Service Contract, cQuant shall have no obligation under this Section 9.1 or otherwise with respect to any Infringement Claim to the extent it is based upon or results from: (i) any use of the Services that is not in accordance with this Service Contract or the Documentation; (ii) any use of the Services in combination with other products, equipment, software, or Content not supplied by cQuant; (iii) cQuant’s conformance to Customer’s specifications; or (iv) any modification of the Services by a person other than cQuant or its authorized agents.
  4. This Section 9.1 states the sole and exclusive remedies of Customer for breach of the Noninfringement Warranty. If cQuant chooses to take any of the actions described in clauses “(i)” through “(iv)” of Section 9.1(b), such action will be deemed to satisfy any indemnification obligations of cQuant arising after the date on which such action is taken but shall be without prejudice to Customer’s indemnification rights arising under this Section 9.1 before such action is taken.

9.2 By Customer. Customer will indemnify, defend, and hold harmless cQuant from and against any third party Claim asserted against cQuant alleging facts that, if true, establish that (a) Customer used the Services in an unlawful, improper, or unauthorized manner; or (b) breached the Customer’s Data Warranty stated in Section 6.1.

9.3 Procedure. Each indemnifying party’s obligations as set forth above, with respect to any particular Claim, are conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of the Claim; (b) the indemnifying party shall have sole control of the defense or settlement of the Claim; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of the Claim; provided, however, that an indemnified party’s failure to notify an indemnifying party of a Claim promptly shall not relieve the indemnifying party of its indemnification obligations except to the extent that such failure caused actual prejudice or damage to the indemnifying party. An indemnifying party’s obligations under this Article include, without limitation, the payment of all damages, costs, and attorneys’ and experts’ fees, whether incurred in satisfaction of a judgment or in settlement; provided, however, that an indemnifying party will not be required to indemnify for any amount paid in settlement unless the settlement disposes of all Claims against the indemnifying party.

ARTICLE 10. Limitations on Damages

10.1 EXCLUSION OF CERTAIN TYPES OF DAMAGES. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL CQUANT, OR ITS SUPPLIERS OR LICENSORS, BE LIABLE TO CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, DATA LOSS, LOSS OF USE, DIMINISHED GOODWILL OR REPUTATION, OR REPLACEMENT. IN NO EVENT WILL CQUANT BE LIABLE FOR THE COST OF PROCURING OR USING SUBSTITUTE PRODUCTS OR SERVICES, I.E., “COVER”. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CQUANT WILL NOT BE LIABLE FOR PERSONAL INJURY, BODILY INJURY, OR PROPERTY DAMAGE RESULTING FROM THE PROVISION, PERFORMANCE, USE, INABILITY TO USE, OR MISUSE OF THE SERVICES. THE LIMITATIONS STATED ABOVE IN THIS PARAGRAPH APPLY REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF CQUANT HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.

10.2 CUSTOMER’S ASSUMPTION OF RISK. CUSTOMER ASSUMES ALL RISK OF DAMAGE, EXPENSE, OR LOSS RESULTING FROM ITS USE OF THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CQUANT WILL NOT BE LIABLE UNDER ANY THEORY FOR DAMAGES, EXPENSES, OR LOSSES INCURRED OR SUSTAINED AS A RESULT OF ITS USE OF OR RELIANCE ON THE SERVICES, E.G., TRADING OR HEDGING LOSSES. THE FOREGOING WILL APPLY REGARDLESS OF WHETHER THE DAMAGES, EXPENSES, OR LOSSES IN QUESTION WERE CAUSED BY DEFECTS OR ERRORS IN THE SERVICES.

10.3 Certain Persons not Liable. In addition to the limitations stated elsewhere in this Article, in no event shall cQuant’s suppliers have any liability arising out of or in connection with any Service.

10.4 LIMITATION AS TO AMOUNT OF DAMAGES. THE MAXIMUM LIABILITY OF CQUANT OR ANY OF ITS SUPPLIERS OR LICENSORS ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES MAY NOT EXCEED THE FEES PAID BY CUSTOMER TO CQUANT FOR ANY SERVICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT INCREASE THE AFOREMENTIONED LIABILITY LIMIT.

10.5 Basis of the Bargain. The limitations and exclusions stated in this Article will survive and continue in full force and effect despite any failure of consideration or failure of an exclusive remedy. Both parties acknowledge that this Service Contract has been entered into in reliance upon these limitations of liability, which form an essential basis of the bargain between the parties.

ARTICLE 11. Confidentiality

11.1 Definition of Customer Confidential Information. “Customer Confidential Information” means (a) all technical and non-technical information related to the Customer’s business or  its current, future, and proposed products or services, including trade secrets, financial results, and plans, marketing plans, and customer and vendor data; and (b) any information that Customer has received from others and is obligated by contract or otherwise by law to treat as confidential or proprietary. Notwithstanding the foregoing, “Customer Confidential Information” does not include any information that: (i) is or becomes known to members of the public, through no fault of cQuant; (ii) is provided to cQuant by a third party who, to cQuant’s actual knowledge, did not commit a breach of duty or other wrongful act in doing so; (iii) is independently developed by cQuant or is previously known to cQuant; (iv) is required to be disclosed by court order or legal process, but only if cQuant makes commercially reasonable efforts to inform Customer of such order or process in advance of disclosure.

11.2 Nondisclosure and Nonuse of Customer Confidential Information. cQuant shall not use, disseminate, or disclose Customer Confidential Information to any third party without the consent of Customer. cQuant shall use Customer Confidential Information solely to perform Work and otherwise to perform its obligations under this Service Contract. cQuant shall treat all Customer Confidential Information with the same degree of care as cQuant accords cQuant’s own confidential information, but in no case shall cQuant use less than reasonable care. cQuant shall disclose Customer Confidential Information only to those of cQuant’s employees and contractors who have a need to know such information in performing their employment or contracting responsibilities. Each such employee or contractor will have agreed to be bound by terms and conditions that at least as protective of Customer Confidential Information as the terms and conditions applicable to cQuant under this Article. cQuant shall return all Customer Confidential Information to Customer on demand at such time as it is no longer needed to perform Work; provided, however, that cQuant may retain a copy solely for archival purposes, for use or production pursuant to court order or legal process.

11.3 Confidentiality of cQuant Work Product. All cQuant Work Product is proprietary and confidential to cQuant. Except as expressly stated in the applicable Work Order, Customer shall not disclose cQuant Work Product to any third party or use it for any purpose other than the approved purposes stated in the applicable Work Order.

11.4 Prohibition against Reverse Engineering. Customer shall not reverse engineer any Hosted Analytics Services or cQuant Work Product. If Customer does so: (a) cQuant will own all rights in and to the results of such reverse engineering, including all Intellectual Property embodied therein; (b) all such results will be deemed cQuant Work Product; and (c) Customer will assign and transfer to cQuant, and hereby does assign and transfer to cQuant, all right, title, and interest in and to such results.

ARTICLE 12. Termination

12.1 Term

  1. Hosted Analytics Services. The terms and conditions of this Service Contract will apply, as to any Hosted Analytics Services, throughout the applicable License Term, unless terminated earlier under another provision of this Service Contract. The License Term and Customer’s obligation to pay subscription fees will renew and continue automatically on a year-to-year basis after the expiration of the then-current License Term, unless Customer gives cQuant written notice of its desire not to renew the License Term, at least three business days before the end of the then-current License Term. The fees to be charged during the License Term as so renewed will not change upon renewal; provided, however, that if cQuant notifies Customer of a price increase, not to exceed five percent, at least ten business days before the end of the then-current License Term, the price increase will apply during the License Term as so renewed.
  2. Professional Services. The terms and conditions of this Service Contract will apply, as to any Professional Services, until the final completion and acceptance of such Professional Services or until terminated under the terms of an applicable Order Form or Work Order.
  3. Effect of Termination; Survival. Upon and after termination, cQuant will cease rendering Services under this Service Contract. Except as stated in the preceding sentence, the terms and conditions of this Service Contract will survive termination for so long as necessary to carry out the intent of the parties.

12.2 Termination of Hosted Analytics Services

  1. By Customer. Customer may terminate any Hosted Analytics Service before its scheduled termination date, for convenience, by so notifying cQuant at any time. Termination will become effective three business days after notice, subject to any contrary provision stated in the applicable Order Form, e.g., a minimum License Term. Fees and other amounts prepaid by Customer will not be refunded upon termination under this paragraph, even if they relate to an unexpired portion of the License Term.
  2. By cQuant. cQuant may terminate any Hosted Analytics Service before its scheduled termination date if (a) Customer has breached any provision of this Service Contract and has failed to cure such breach within 10 calendar days after cQuant notifies Customer of the breach; (b) cQuant is required to do so by law; (c) cQuant’s provision of the Hosted Analytics Services to Customer is, in cQuant’s opinion, no longer commercially viable; or (d) cQuant has elected to discontinue the Hosted Analytics Service.
  3. Procedures upon Termination of Hosted Analytics Services. Upon termination of any Hosted Analytics Service: Customer will no longer have access to the terminated service and shall not attempt to access or use it; the terminated service will be deactivated; and the provisions of Section 6.4 regarding Customer Data will apply.

ARTICLE 13. Contract Formation; Changes; Precedence

13.1 Acceptance by Customer. Customer will be deemed to have accepted this Service Contract and to have signed the Order Form if Customer receives and accepts any Services. Order Forms may be signed by electronic or digital means or by email correspondence indicating that assent or acceptance was intended.

13.2 Customer Responsible for Acts of Users. Customer is responsible for the acts or omissions of its Users and other employees and contractors occurring in connection with this Service Contract. This Service Contract will apply to all Users; provided, however, that Users’ rights derive entirely from Customer’s rights; Users have no independent rights to use or access any Services.

13.3 Representation of Authority to Bind Customer. An individual who signs the Order Form on behalf of Customer represents that he or she has the authority to do so.

13.4 Changes, Modifications, Amendments, and Waivers

  1. Unilaterally. Except as otherwise provided in this Service Contract, cQuant may change any of these Terms and Conditions; any such change (“Change”) will take effect 30 days after cQuant sends Customer a notice describing the change, by email addressed to Customer’s email address as shown on cQuant’s records. If and only if a particular Change is intended to apply across-the-board to all of cQuant’s customers, it will be posted on the Site, but cQuant’s decision not to post a particular Change on the Site will not affect its applicability to Customer. If Customer continues to use the Service to which a particular Change applies, after the effective date of that Change, Customer will be deemed to have accepted that Change.
  2. By Mutual Consent; Precedence of Order Form. Any provision of this Service Contract may be modified by mutual, written consent of the Parties. The Order Form may contain a modification of this Service Contract, and in such case the parties’ signatures on the Order Form will constitute their written consent to modify this Service Contract accordingly. In case of any inconsistency between this Service Contract and the Order Form, the Order Form will control and take precedence. No waiver of a breach of any provision of this Service Contract shall constitute a waiver of any other or subsequent breach.

ARTICLE 14. General

14.1 Governing Law and Venue. This Service Contract will be governed by and interpreted under the laws of the State of Colorado, without giving effect to any conflict of laws principles that require the application of the law of a different jurisdiction, except that the laws of the United States will apply to questions of copyright, patents, and other exclusively federal matters. Customer hereby consents to the exclusive personal jurisdiction and venue of the state and federal courts located in the State of Colorado. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Service Contract. Customer shall comply at all times with all applicable laws, ordinances, regulations, and statutes, whether foreign or domestic. Without limiting the generality of the foregoing, Customer will not export, reexport, or transfer, directly or indirectly, any United States technical data acquired from cQuant, or any products utilizing such data, in violation of the United States export laws or regulations.

14.2 Local Laws. cQuant and its suppliers make no representation that any Hosted Analytics Services is appropriate or available for use in countries other than the United States. If Customer uses any Hosted Analytics Services from outside the United States, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Neither party shall distribute or use any Content in a manner that violates United States law.

14.3 Certain Rules of Construction. Headings and titles in these Terms and Conditions are for reference only and will be ignored for purposes of construing and applying the terms hereof. The word “including” will be construed as though it is followed by the words “without limitation”. References to this Service Contract will be deemed to include and constitute references to all related Order Forms and Work Orders. References to an article or section of this Service Contract will be construed as references to that article or section and all its parts and subparts.

14.4 Successors and Assigns. cQuant may not subcontract or otherwise delegate cQuant’s Professional Services obligations under this Service Contract without Customer’s prior written consent. This Service Contract will inure to the benefit of, and will be binding upon, the heirs, successors, and permitted assigns of the parties, respectively.

14.5 Injunctive Relief. Injunctive relief will be available to either Party to prevent or stop a breach by the other Party of its confidentiality or nonsolicitation obligations, if any, or in any other appropriate circumstances.

14.6 Notices. Any required or permitted notice must be in writing, which includes email. Notice will be deemed given when it is actually received and will be presumed received and read within one business day after it is sent. Notice to cQuant must be sent to: info@cQuant.io. Notice to Customer must be sent to Customer’s email addresses stated in the applicable Order Form or Work Order. Either party may change its email address for notice purposes by giving written notice of the change to the other party.

14.7 Severability. If any provision of this Service Contract is held invalid or unenforceable, the other provisions of this Service Contract will remain valid and enforceable, and the invalid or unenforceable provision will be deemed modified insofar as it necessary to render it valid, enforceable and conforming as closely as possible to the intent of the parties. The court is hereby given the authority to modify this Service Contract to effectuate the preceding sentence.

14.8 Entire Agreement. These Terms and Conditions and all related Order Forms and Work Orders, which together comprise this Service Contract, constitute the entire agreement between the parties relating to its subject matter and supersede all prior and contemporaneous agreements concerning such subject matter, whether written or oral.

14.9 Effectiveness. This Service Contract will be effective from and after the Effective Date and will continue in effect as stated in Section 12.1.

 

EXHIBIT A

SERVICE LEVEL AGREEMENT

Uptime Warranty

cQuant warrants that the Uptime percentage, as defined below, will equal or exceed 99.5% in each month throughout the Term (“Uptime Warranty”). The “Uptime Percentage”, during any calendar month, is equal to (x) the number of minutes that Customer is able to access the Service on a continuous basis during that calendar month divided by (y) the total number of available minutes during the same month. For purposes of the foregoing, the Customer will be considered able to access the Service on a continuous basis, and the Uptime calculation will not be affected, during any and all of the following circumstances; (a)  planned outages outside of normal business hours where cQuant has provided Customer with a timely Notice of Downtime as described below ; or (b) any interruption in the ability of Customer to access the Service that continues for less than 10 minutes or results from causes beyond cQuant’s control, including, but not limited to (i) any failure in Customer’s own computer systems, telephone equipment, hardware, software or other equipment, (ii) a Force Majeure event; (iii) any act or omission by Customer or any of its users; and (iv) outage or downtime of the services of cQuant’s hosting provider, Amazon Web Service. For purposes of this definition the Service includes the complete operating environment, including the applications, data center and data network, as well as all integrated telecommunications equipment. Service does not include any of the following, if owned or operated by Customer: the data network, any data processing equipment, any telecommunications equipment or services, Internet or broadband service, or any other publicly available data communications facilities utilized by Customer.

Customer shall use, and shall provide to cQuant on demand, all log files, database records, audit logs, and other information reasonably available to enable cQuant to investigate fully all claims for breach of the Uptime Warranty (“Warranty Claims”) and to make a reasonably accurate, good faith judgment regarding the Customer’s due remedy, if any. At Customer’s request cQuant will make available to Customer all information used by cQuant in evaluating Customer’s Warranty Claims. cQuant may establish, and may modify from time to time, reasonable procedures for the submission of Warranty Claims.

NOTICE OF DOWNTIME. cQuant will use commercially reasonable efforts to provide Customer at least 48 hours’ notice of the date, start time, and completion time of any regularly scheduled data center downtime. cQuant will provide notification of downtime by email to Customer’s designated application administrators, and, if requested, to other users within Customer’s organization, provided that Customer has maintained a current email address for each such user in accordance with cQuant’s instructions.

Remedies

Customer’s sole and exclusive remedies for breach of the Uptime Warranty will be as stated below in this section.

If Customer submits a valid Warranty Claim, cQuant will provide Customer with a refund of a portion of the subscription fees, calculated in accordance with the table below.

Uptime in any Calendar Month

Remedy

Less than 99.5% but equal to or greater than 95.0%

Refund or credit of 10% of one month’s subscription fee

Less than 95.0% but equal to or greater than 90.0%

Refund or credit of 15% of one month’s subscription fee

Less than 90.0%

Refund or credit of 25% of one month’s subscription fee

If Customer submits one or more valid Warranty Claims for incidents occurring in each of three consecutive calendar months, then in lieu of the remedies stated in the above table, Customer may terminate its subscription for the Service on 30 days’ written notice, in which event Company will pay Customer a pro-rated refund of the fees paid but not yet earned, within 10 days after Company receives Customer’s demand for the same; provided, however, that any refunds previously paid under the above table will be credited in favor of cQuant.

Support

Severity Levels – Definitions

Severity Level

Definition

1

System is completely unavailable or is inoperable; i.e. users cannot log into the system or the system performance is degraded such that users are unable to use the system.

2

System is available, but critical business processes and multiple users are substantially impacted. Some business operations can proceed.

3

System is available, but business processes and multiple users are moderately impacted. Severity 3 will also cover situations where a suitable workaround has been established for a Severity 1 or Severity 2 incident. Example: A user’s model run is not completing or is failing.

4

System is available, and a fault is identified that has minor or no business impact. Example: usability issue, cosmetic fault, etc.

Severity Response Times

cQuant will manage incidents to the following severity timing and activity levels:

Severity Level

Response

Resolution

1

30 minutes

Three Hours

2

Two hours

24 Hours

3

Four hours

Five business days. If new code is required, code fix may be scheduled for next monthly release.

4

Within one business day

Will be scheduled into a following major software release.

Support Procedures

Requests must be submitted during cQuant’s normal business hours, which are Monday through Friday, 7 AM – 5 PM Mountain Time, excluding bank holidays. cQuant’s standard support procedures are as follows:

  1. Requests for support may be submitted by any of the following methods:
    • Via a dedicated customer support email, provided to customers during their service, or
    • Via telephone at the number listed on the cQuant website, or
    • Via mail sent to the address listed on the cQuant website.cQuant will provide support for certain users via E-mail only, as specified in the appropriate Description of Service.
  2. All requests for support must be submitted by one of the specific named users who is licensed to access the Service.
  3. Support requests should include as much detail as possible in order to facilitate the resolution process. Required detail includes such items as user name, issue description and urgency, application page being used, document and vendor numbers, number of users affected, date/time, etc.
  4. Customer’s application administrator or other contact must be available to assist with further information gathering or resolution testing.