Last Revised on October 15, 2020
Quantified Communications (hereafter, "QC") has developed a proprietary, hosted platform (the “Platform”), which includes a service for analyzing communications that may include, without limitation, text and other written content, language, voice, audio and spoken content, and facial expressions, physical gestures, visual aids, and video content (“Communications”).
2. Access to Platform
(a) Rights to Use the Platform. Subject to the terms and conditions of this Agreement (including payment of all amounts due hereunder), QC hereby grants Customer and its End Users (defined below) a limited, non-exclusive, non-transferable, non-sublicensable, right and license during the Term to: (i) access and internally use the Platform, solely for its intended purpose, to upload and submit Communications for analysis, and (ii) use the reports, analytics and other data generated by the Platform in connection with evaluating and analyzing the Communications (the “QC Results”) for internal educational, training, and analytics purposes.
(c) Restrictions. Customer and its End Users may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Platform, or use the Platform as a service bureau. Customer and its End Users may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, create derivative works of the Platform, or any part thereof, or use the Platform to violate any law or regulation. To the extent the foregoing restrictions are prohibited by applicable law or by an agreement between QC and one of its licensors, the foregoing activities are permitted only to the extent necessary to comply with such law or license(s). Customer shall not exploit the Platform in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
3. Fees and Taxes
(a) Fees. Customer shall pay QC the applicable fees set forth in the License and Services Agreement pursuant to the payment terms therein. Any payment not received from Customer when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less.
(b) Renewal Term Fees. QC reserves the right to increase the pricing for any Renewal Term. At least sixty (60) days prior to each Renewal Term, QC will provide Customer with revised pricing applicable to such Renewal Term. If Customer does not object within thirty (30) days, the Agreement will automatically renew at the then current pricing.
(c) Payment Terms. Unless otherwise set forth in the License and Services Agreement, all fees shall be due and payable within thirty (30) days of the date of invoice. Any invoice remaining unpaid for more than thirty (30) days from receipt shall accrue interest at a rate of the lesser of one percent (1.5%) per month, or the highest rate allowed by law. Additionally, QC may also (at its discretion and in addition to other remedies it may have) temporarily suspend Customer’s and its End Users’ access to the Platform and the App (including removing the Communications) for any invoice that remains unpaid for more than thirty (30) days from receipt. All fees due hereunder shall be paid in U.S. dollars.
(d) Taxes. All amounts payable hereunder by Customer are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes. If QC has the legal obligation to collect any Taxes, Customer shall reimburse QC upon invoice by QC. If Customer is required by law to withhold any taxes from its payments to QC, Customer shall provide QC with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payments.
4. Intellectual Property
(a) QC Intellectual Property. QC retains exclusive ownership of all right, title and interest in and to the Platform, and all intellectual property rights therein. Without limiting the foregoing, QC will retain exclusive ownership of (i) all of QC’s know-how, concepts, techniques, methodologies, ideas, templates, software, interfaces, utilities and tools, (ii) all updates, modifications, improvements, enhancements and derivative works of the Platform conceived, discovered, developed or reduced to practice, solely or in collaboration with others, and (iii) in each case, all related intellectual property rights. To the extent any QC intellectual property result from access to or the use of Customer Confidential Information, it will constitute QC’s intellectual property only if Customer is not identified or reasonably identifiable therein. (By way of example, and not limitation, if QC learns in the performance of its obligations under this Agreement that certain categories of documents tend to have certain style patterns, errors or fields or must meet certain academic requirements, such information shall be QC’s intellectual property and nothing in this Agreement will be construed to limit QC from using that intellectual property on an anonymized basis in engagements with other QC customers.)
(b) Feedback. If Customer or any of its End Users submit comments, suggestions, or other feedback regarding the Platform or the Platform to QC (“Feedback”), Customer agrees that QC will own all intellectual property rights to such Feedback without accounting or obligation to Customer.
(c) Customer Intellectual Property. Except as specifically set forth in this Agreement, Customer retains ownership of all right, title and interest in and to the Communications, the QC Results, and the Marks (defined below), and all intellectual property rights therein.
(d) License to Communications and QC Results. Customer hereby grants to QC a perpetual, non-exclusive, transferable, sublicensable, royalty free license to use the Communications and QC Results to provide the Platform to Customer and its End Users, and to publish such Communications, QC Results and related information to the Platform for End Users to view and interact with the Communications and QC Results. Additionally, Customer hereby grants to QC a perpetual, non-exclusive, transferable, sublicensable, royalty free license to use such Communications and QC Results to create, extract or otherwise generate, compile, synthesize and analyze such Communications and QC Results in order to monitor and improve the Platform, including without limitation to improve the Platform’s capabilities, (“Blind Data”) and to use such Blind Data for any lawful business purpose; provided that such Blind Data will not contain personally identifiable information or identify Customer or its End Users as the source of such data. Notwithstanding anything in this Agreement to the contrary, to the extent that QC collects or generates Blind Data, Customer hereby grants QC a perpetual, non-exclusive, transferable, sublicensable, royalty free, fully paid up license to use such Blind Data for any lawful business purpose.
(e) Trademark License. Customer hereby grants to QC a non-exclusive, non-transferable (except in connection with a permitted assignment of this agreement) license during the Term to use the trademarks, logos and associated branding provided by Customer to QC in connection with this Agreement (the “Marks”) in order to provide the Platform to Customer. QC’s use and display of the Marks will comply with the branding guidelines provided by Customer from time to time. Customer acknowledges that QC may refer to Customer as a customer of QC and include the Marks and information regarding Customer’s use of the Platform in QC’s marketing materials, list of customers and on QC’s website.
(f) Reservation of Rights. Each party reserves all intellectual property rights not expressly granted to the other party in this Agreement. Except as expressly stated, nothing herein shall be construed to directly or indirectly grant to a receiving party any right, title or interest in a providing party’s intellectual property rights in services or materials furnished by such providing party hereunder.
5. Term, Suspension and Termination
(a) Term. The term for this Agreement shall commence on the Effective Date and continue in effect for the initial term set forth in the License and Services Agreement (“Initial Term”), unless earlier terminated as set forth herein. Thereafter, this Agreement will automatically renew for successive terms of one (1) year each (each, a “Renewal Term”), unless either party provides written notice of its intent not to renew sixty (60) days prior to the expiration of the then current Term. The Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”
(b) Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows by either party: (i) upon written notice to the other party of a material breach of this Agreement by the other party, which breach the other party does not cure within thirty (30) days after receipt of written notice of the material breach; or (ii) in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business. Notwithstanding the termination of this Agreement for any reason, neither party will be relieved of any duty, obligation, debt or liability that arose or accrued prior to the effective date of termination.
(c) Suspension. In the event that Customer does not pay any fees when due under this Agreement, QC may suspend all Services without any liability to Customer until Customer has paid all such fees.
(d) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 3 (Fees and Taxes) (as to amounts owed as of termination); 4 (Intellectual Property); 5(d) (Survival); 7 (Representations and Warranties); 8 (Indemnification); 9 (Confidential Information); 10 (Acknowledgment; Disclaimer of Warranties); 11 (Limitation of Liability); and 12 (Miscellaneous).
(a) Support Services. During the Term, QC will provide Customer with email support regarding use of the Platform, including basic trouble shooting and support in responding to reasonable questions related to the functionality of the Platform. Support inquires made via email will be serviced and responded to by QC customer service personnel. QC will use commercially reasonable efforts to respond to such inquiries within forty-eight (48) hours.
(b) Maintenance; Availability. Scheduled system maintenance shall take place from time to time, and during such time, the Platform may be unavailable. Emergency maintenance may be required at other times in the event of system failure. QC makes no guarantees about Platform uptime. QC makes no representation that the Platform is available or permitted in any particular location. Use of the Platform is void where prohibited. Customer uses the Platform at its own initiative and is responsible for compliance with any applicable laws in connection with Customer’s use thereof. QC may also impose limits on the use or access to the Platform.
7. Representations and Warranties
(a)General. QC and Customer each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (iv) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
(b) FERPA. If Customer is an educational institution, Customer represents and warrants that it will at all times during the Term comply with the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its implementing regulations, 34 C.F.R. pt 99, (“FERPA”) and other laws with respect to the Communications and its use of the Platform under this Agreement.
(c) Consents and Approvals. Customer hereby represents and warrants that it has obtained, and covenants to obtain, all required consents or approvals that are necessary to allow QC to collect, process, use and store Communications. QC’s performance hereunder is specifically conditioned on Customer’s receipt of such consents and approvals.
(a) QC Indemnification. QC agrees that Customer shall have no liability and QC shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Losses”) asserting that the Platform infringes the intellectual property or other proprietary rights of such third party. QC’s obligations under this Section 8(a) shall not apply if: (i) Customer or its End Users use the Platform in violation of applicable law or this Agreement, (ii) the Platform is modified by any person other than QC or its agents; (iii) the infringement claim arises out of or pertains to QC’s compliance with Customer’s instructions or specifications; or (iv) the infringement claim arises out of the combination of the Platform with any software, hardware or materials of any third party.
(b) Customer Indemnification. Customer agrees that QC shall have no liability and Customer shall indemnify, defend and hold QC harmless against any Loss to the extent arising from infringement of the intellectual property or other proprietary rights of a third party attributable to QC’s use of the Communications, the QC Results, or the Marks in accordance with this Agreement.
(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
9. Confidential Information
(a) Definition. “Confidential Information” means information that the disclosing party identifies in good faith as confidential or proprietary or, given the nature of the information or the circumstances surrounding its disclosure, the receiving party should reasonably understand to be confidential or proprietary. All Confidential Information relating to the Platform shall be deemed to be the Confidential Information of QC.
(b) Non-Disclosure. Each party may use Confidential Information only as necessary to exercise its rights and discharge its obligations under this Agreement. Neither party shall disclose Confidential Information to a third party. The receiving party shall protect Confidential Information using the same degree of care it uses to protect the confidentiality of its own confidential information of like nature, but no less than a reasonable degree of care. The foregoing obligations shall not apply to any Confidential Information that: (i) was publicly known at the time the disclosing party disclosed such Confidential Information to the receiving party; (ii) becomes part of the public domain or publicly known not due to any unauthorized act or omission by the receiving party; (iii) is independently developed by the receiving party without reference to or reliance upon such Confidential Information; (iv) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (v) is required to be disclosed by law, in which case the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party of the request for disclosure, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure. Notwithstanding anything to the contrary, QC may identify Customer as a customer of QC without disclosing the nature of the services provided by QC to Customer.
10. Acknowledgement; Disclaimer of Warranties
(a) Customer Acknowledgment. Customer acknowledges that the Platform is an automated text and data analysis system designed to identify and report on patterns and/or trends discovered in the source material, based on the text provided by Customer and its End Users and that the Communications and QC Results generally will not be manually reviewed or validated by individuals. For greater certainty, the Platform will not necessarily identify all trends or errors and: (a) the QC Results delivered hereunder do not constitute recommendations by QC; and (b) QC does not provide any warranties regarding the results or analysis contained in the QC Results or that all trends or errors will be identified. The QC Results should be considered as one piece of evidence about the quality of any Communications. Customer and its End Users should review and evaluate the QC Results and the feedback contained therein carefully to ensure that appropriate decisions are being made with respect thereto.
(c) DISCLAIMER. THE PLATFORM AND QC RESULTS ARE PROVIDED "AS IS AND "AS AVAILABLE" WITH ALL FAULTS. EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF ANY MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT. QC DOES NOT WARRANT THAT THE USE OF THE PLATFORM OR QC RESULTS WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES, WILL MEET CUSTOMER’S REQUIREMENTS OR THAT OR THAT DEFECTS IN THE PLATFORM OR QC RESULTS WILL BE CORRECTED.
11. LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR BREACH OF SECTION 9 (CONFIDENTIAL INFORMATION): (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PLATFORM, QC RESULTS OR OTHER MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY QC FROM CUSTOMER UNDER THIS AGREEMENT. CUSTOMER AND ITS END USERS ASSUME ALL LIABILITY AND RESPONSIBILITY FOR INTERPRETING THE QC RESULTS OR SHARING THE QC RESULTS WITH ANY THIRD PARTY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN THOSE JURISDICTIONS QC’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
(a) Independent Contractors. The relationship between QC and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
(b) Notice. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided in the License and Services Agreement.
(c) Assignment. Neither party may assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that no consent shall be required with respect to an assignment by either party to an affiliate or as part of any transfer by merger, acquisition, stock transfer or other consolidation of with another entity, or sale of all or substantially all of such party’s assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(d) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Policy, the terms and conditions of this Agreement shall take precedence.
(e) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
(f) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(g) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(h) Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Austin, Texas. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
(i) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(j) Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.