qval Service Subscription Agreement
The Service is provided to Customer subject to the terms and conditions set forth in this Service Subscription Agreement (“Agreement”). By using the Service or registering with qval, Inc. (“qval”) for the Service, Customer agrees to the terms of this Agreement. The term “Customer” means the organization for which the Site is used and to which the Services are provided. Each and every person using the Site on behalf of the Customer represents that she has the authority to do so on the organization’s behalf.
No agreement is formed between qval and Customer, and qval will not have any obligation to Customer, unless and until qval sends Customer an email confirming qval’s acceptance of Customer’s registration (which is Customer’s offer to enter into this Agreement).
If Customer has entered into a signed hardcopy agreement regarding the subject matter hereof: (1) with qval, then that signed hardcopy agreement governs Customer’s use of the Service, or (2) with an authorized partner of qval, then that signed hardcopy agreement governs Customer’s use of the Service and qval provides the Service as a subcontractor of such authorized partner.
1. Definitions. As used in this Agreement:
1.1 “Confidential Information” of a party means, (1) with respect to Customer, all information regarding Customer’s business (including technical, marketing, financial, investment, employee, planning, and other confidential or proprietary information) that is disclosed to qval through the Service; and (2) with respect to qval, all information regarding qval’s business (including technical, marketing, financial, investment, employee, planning, and other confidential or proprietary information) that is disclosed to Customer and is identified as confidential or proprietary at the time of disclosure or that Customer knew or should have known, under the circumstances, was considered confidential or proprietary. Without limiting the foregoing, Customer Confidential Information includes Customer Data, and qval Confidential Information includes information derived from or concerning the Service, the System or the Documentation and the terms of this Agreement.
1.2 “Customer Data” means data, content, or information submitted by Customer through the Service.
1.3 “Documentation” means the user manuals, handbooks, or online materials available through the Site that describe the features, functionality or operation of the Service.
1.4 “Fees”means the fees for the Service, as described on the Site, which may be adjusted by qval as described in Section 4 of this Agreement.
1.5 “Service” means the services provided by qval to Customer via the Site, including on-line tools for capturing, managing, and analyzing a Customer’s financial data, and analysis services provided by qval agents.
1.6 “Site”means www.myqval.com, www.qval.com, and any successor or associated site designated by qval for the provision of the Services.
1.7 “Subscription Administrator” means the individual designated in Customer’s account on the Site as having responsibility over all administrative and billing matters relating to Customer’s use of the Service.
1.8 “User” means a Customer employee, representative, consultant, contractor or agent who uses the Service in connection with Customer’s account.
1.9 “UserID”means a unique identification name and password for each User in Customer’s account.
2. Service.Subject to the terms of this Agreement, including the payment of the Fees, (a) qval hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Site and the systems used to provide the Service, by the number and type of Users specified in Customer’s account, in accordance with the Documentation, and solely for Customer’s internal business purposes (not for resale or to provide services to third parties), and (b) qval will provide the Service to Customer. Customer may not provide access to the Service to anyone other than a User who is using the Service on behalf of Customer for the purpose of analyzing Customer’s data. Customer may use each report generated through the use of the Service solely for the purpose stated in the legend of each report; Customer will not use or disclose any report (or part thereof) for any other purpose.
3. Customer’s Use of the Service.
3.1 Access and Security Guidelines. Each User will be assigned or choose a UserIDfor access to and use of the Service. Customer shall be responsible for ensuring the security and confidentiality of its UserIDs. Each UserID may be used by a single User only. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify qval promptly of any such unauthorized use. Customer will not use its access to the Service to: (a) harvest, collect, gather or assemble information or data regarding other customers without their consent; (b) access or copy any data or information of other customers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (d) harass or interfere with another customer’s use and enjoyment of the Service. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Service. Customer will ensure that each User complies with the terms of this Agreement; and Customer is responsible for all activities that occur under Customer's User accounts.
3.2 Restrictions. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the systems used by qval to provide the Service; (b) interfere in any manner with the operation of the Service, or the hardware and network used to operate the Service; (c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Service; (e) create Internet "links" to or from the Service, or "frame" or "mirror" any of qval’s content which forms part of the Service (other than on Customer’s own internal intranets); or (f) otherwise use the Service in any manner that exceeds the scope of use permitted under Section 2 hereof.
3.3 Feedback. qval will own any feedback, comments, or input provided by Customer to qval related to the Service (“Feedback”), and Customer hereby assigns to qval all right, title and interest in any Feedback, including any intellectual property rights therein.
4. Fees, Payment and Suspension of Services. As consideration for the subscription to the Service provided by qval under this Agreement, Customer will pay qval the Fees applicable to the Services for which Customer has registered or which Customer uses. Customer hereby authorizes qval to charge the credit card submitted to qval by Customer via the Site (including charging such credit card on a recurring basis). Except as stated on the Site or in Customer’s account pages on the Site, all Fees are due at the beginning of the term of this Agreement or on the first day of each calendar month thereafter. qval may amend the Fees under this Agreement, no more than once per calendar year, by giving thirty (30) days written notice of the new Fees. If Customer does not terminate the Agreement for its convenience prior to the end of such thirty (30) day period, Customer will be deemed to have accepted such new Fees.
All Fees are expressed in and all payments will be made in U.S. dollars. Overdue amounts shall accrue interest at the rate of 1 ½% per month, or at the highest legal interest rate, if less. All stated Fees are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied in connection with this Agreement, or other transactions contemplated under this Agreement, except for employment taxes and taxes based on qval’s net income. Customer shall ensure that the Subscription Administrator maintains complete, accurate and up-to-date Customer billing and contact information via the online Customer account section of the Service at all times.
5. Confidential Information.
5.1 Confidentiality. Each party will (a) hold the other party’s Confidential Information in strict confidence, (b) limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not use the other party’s Confidential Information for any purpose except to perform its obligations or exercise its rights under this Agreement.
5.2 Anonymized Data. Notwithstanding anything else to the contrary in this Agreement, qval may use and disclose Anonymized Data for any purpose at qval’s sole discretion. “Anonymized Data” means information that is derived from Customer Data and is not associated with any information identifying the Customer.
5.3 Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
5.4 Legal Requirements. Customer agrees that qval may disclose Customer Data if qval determines that such action is reasonably necessary: (a) to comply with the law, regulatory requirements, or legal or regulatory process; (b) to enforce this Agreement; or (c) to protect the rights of qval or the rights or safety or a third party. Notwithstanding the foregoing, nothing in this Section 5 shall impose a duty on qval to make any such disclosures.
5.5 Security. qval will use industry standard efforts to maintain the confidentiality of Customer Data and communications. qval will use Secure Socket Layer (SSL) technology (or comparable technology) to provide security for certain sensitive transmissions. qval does not store credit card numbers in its systems, but it maintains a unique number that links to qval’s credit card processing service provider (which stores credit card numbers). In addition, qval will use firewall technology to secure Customer Data stored on its computers. Although qval will implement and follow these technical measures to protect against unauthorized access to or interception of Customer data, Customer acknowledges that qval cannot fully eliminate these security risks and cannot guarantee that unauthorized access to Customer Data will never occur.
6. Ownership.
6.1 qval Systems and Technology. Customer acknowledges that qval retains all right, title and interest in and to qval’s systems and all software, materials, formats, interfaces, information, data, content and qval proprietary information and technology (other than Customer Data) used by qval or provided to Customer in connection with the Service (the “qval Technology”), and that the qval Technology is protected by intellectual property rights owned by or licensed to qval. Other than as expressly set forth in this Agreement, no license or other rights in the qval Technology are granted to the Customer, and all such rights are hereby expressly reserved by qval.
6.2 Customer Data. Customer retains all right, title and interest in and to the Customer Data. qval will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer grants to qval all necessary licenses in and to such Customer Data solely as necessary for qval to provide the Service to Customer. qval will access and use such Customer Data only as required to perform requested services on behalf of Customer, or to create Anonymized Data.
7. Term and Termination.
7.1 Term and Termination. The term of this Agreement will commence on the date that qval sends Customer an acceptance of Customer’s registration for the Service and continue until the last day of the calendar month in which the one-year anniversary of such date occurs, unless extended or terminated earlier as allowed herein. The Agreement will automatically extend for additional successive one-year periods. Either party may terminate this Agreement at any time for its convenience, effective upon the last day of the calendar month after which written notice is received by qval. In addition, qval may terminate this Agreement if Customer materially breaches the Agreement and does not cure such breach (if curable) within ten (10) days after written notice of such breach.
7.2 Effects of Termination/Expiration. Upon the expiration or termination of this Agreement for any reason, (a) any amounts owed to qval under this Agreement before such termination will become immediately due and payable; (b) all licenses granted under the Agreement will terminate and Customer will not access or attempt to access the Service; and (c) each party will delete all property (including any Confidential Information and Customer Data, but expressly excluding Anonymized Data (which qval may retain and use pursuant to Section 5.2)) of the other party in its possession or control. The rights and duties of the parties under Sections 4, 5, 6, 7.2, 8, 9, 10, and 11 will survive the termination or expiration of this Agreement.
8. Disclaimer. qval makes no warranty concerning the Service or any data, materials, and documentation provided in connection with this Agreement by qval and its suppliers are provided “as is” and “as available.” Customer acknowledges and agrees that the Service is merely one tool to be used, and to and that qval does not represent the accuracy of any data or information provided by qval or that use of the Service will cause Customer to be in compliance with applicable rules and regulations. qval and its suppliers disclaim any and all warranties, express or implied, by operation of law or otherwise, including any implied warranties of noninfringement, merchantability or fitness for a particular purpose or any implied warranties arising out of course of performance, course of dealing or usage of trade. qval does not warrant that the Service will be provided error-free, uninterrupted, completely secure, or virus-free.
9. Indemnity.
9.1 By Customer. If any action is instituted by a third party against qval arising out of or relating to Customer’s use of the Service (including claims by any customer or business partner of Customer), Customer will defend such action at its own expense on behalf of qval and shall pay all damages attributable to such claim which are finally awarded against qval or paid in settlement of such claim. Customer shall have no obligation under this Section for any claim or action that arises out of a breach of this Agreement by qval.
9.2 By qval. If any action is instituted by a third party against Customer claiming that the Service infringes such third party’s U.S. patent, copyright, or trade secret, qval will defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in a qval-approved settlement of such claim. qval shall have no obligation under this Section for any claim or action that arises out of a breach of this Agreement by Customer or any combination of the Service with any product or service provided by a third party.
9.3 Conditions. If an indemnified party seeks to be indemnified under the provision of this Section, the indemnified party will (a) promptly notify the indemnifying party of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the indemnifying party sole control over the defense of such Claim. However, if the indemnified party fails to notify the indemnifying party promptly, the indemnifying party will be relieved of its obligations under this Sectiononly if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The indemnifying party may settle or compromise a Claim without the indemnified party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by the indemnified party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against the indemnified party or any defense that the indemnified party may assertin any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the indemnified party. Upon the indemnifying party’s assumption of the defense of such Claim, the indemnified party will cooperate in such defense, at the indemnifying party’s expense.
10. Limitation of Liability. Except for breaches of Section 5, qval’s total cumulative liability to Customer for any and all claims arising from or in connection with this Agreement (under any legal theory including claims in contract or tort) will not exceed the amounts actually paid to qval by Customer in the twelve (12) month period immediately preceding the Customer’s formal written notice of the claim for liability hereunder. Except for breaches of Section 5, in no event will qval be liable for special, incidental, indirect or consequential damages arising out of or in connection with this agreement (under any legal theory including claims in contract or tort), including, but not limited to, interrupted communications, lost data or lost profits, even if qval has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy provided herein.
11. General Provisions
11.1 Publicity. qval and Customer may make public announcements of the existence of this Agreement and the relationship between the parties. All public announcements by either party concerning this Agreement are subject to prior written approval by Customer and qval, which approval shall not be unreasonably withheld. Customer agrees to allow qval to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of qval and a user of the Service.
11.2 Assignment. Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement shall inure to the benefit of and shall be binding on the permitted successors and assignees of the parties. Any attempted transfer of assignment of this Agreement in violation of this Section 11.2 is null and void.
11.3 Governing Law; Venue; Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado without giving effect to any principle that may require the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any dispute that cannot be resolved within a reasonable amount of time by the parties shall be resolved by final and binding arbitration administered by AAA in Denver, Colorado (the “Administrator”) in accordance with its then existing Commercial Arbitration Rules before a single arbitrator (“Arbitrator”) selected in accordance with those rules; however, upon the written demand of any party to the arbitration, the arbitration shall be conducted before three Arbitrators selected in accordance with those rules. The arbitration hearing shall be held in Denver, Colorado, and shall be conducted in English. The parties shall, at all times, have the right to request one or more provisional remedies from a court of competent jurisdiction. The non-prevailing party shall pay the reasonable costs and attorneys’ fees of the prevailing party. By agreeing to this binding arbitration provision, the parties understand that they are waiving certain rights and protections which may otherwise be available if a dispute were determined by litigation in court, including, without limitation the right to a jury trial.
11.4 Notices. Any notice or other communication to qval required or permitted under this Agreement and intended to have legal effect must be given in writing to qval at 2595 Canyon Blvd. Suite 150, Boulder, CO 80302 (or such other address that qval may identify (on the Site) as its principal office location). Such notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested), or (c) sent by recognized air courier service. Any notice or other communication to Customer required or permitted under this Agreement and intended to have legal effect may be given to Customer via email at the email address in Customer’s account or via one of the methods described in the previous sentence.
11.5 Entire Agreement. Subject to the third paragraph at the beginning of this Agreement, this Agreement, which includes any and all other rules and policies set forth on the Site, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
11.6 Interpretation. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The term “including” or “includes” means “including without limitation.”
11.7 Relationship. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
11.8 Force Majeure. Neither party will have any liability or be in breach of this Agreement for any cessation, interruption, or delay in the performance of its obligations hereunder (other than payment obligations) due to causes beyond its reasonable control including: earthquake, flood, fire, storm, or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, terrorism, disruption of the public markets, war, or armed conflict.