Version Date: December 1, 2019
YOU MUST READ AND AGREE TO THESE TERMS PRIOR TO DOWNLOADING AND/OR USING THE SERVICE. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER FORM, OR DOWNLOADING, INSTALLING AND/OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SERVICE IF YOU ARE A SPLASH QX CLOUD COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF SPLASH QX CLOUD.
If you register for a Free Trial, the Terms will also govern your use of the Service during the trial period. Other Splash QX Cloud subscription modules are available, subject to separate terms and conditions.
1.1. “Affiliate” means any legal entity in which Customer, directly or indirectly controls more than 50% of the voting rights or shares. Any such legal entity shall be considered an Affiliate for only such time as such interest is maintained.
1.2. “Customer Data” means all electronic data or information submitted by Customer to the Service.
1.3. “Effective Date” means the date that Customer signed the applicable Order Form.
1.4. “Free Trial”. If Customer registers with SPLASH QX CLOUD or through a THIRD PARTY AppExchange for a free trial of the Service, SPLASH QX CLOUD will make the Service available to Customer on a trial basis free of charge for the Trial Subscription Term. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. FREE TRIALS MAY ONLY BE INSTALLED IN SANDBOX ENVIRONMENTS AND USED SOLELY FOR EVALUATION PURPOSES AND NOT FOR THE MAINTENANCE OR PROCESSING OF ANY DATA ON WHICH CUSTOMER WOULD TYPICALLY RELY IN A PRODUCTION CAPABLE ENVIRONMENT.
1.6. “Order Form” means the ordering documents (including those associated with online commerce) representing the purchase of the Service as agreed to between the parties that specify the number of subscriptions ordered, the Subscription Term, applicable fees, and any additional terms and conditions.
1.7. “Purchased Service” means Service that Customer purchases under an Order Form, as distinguished from that provided pursuant to a free trial.
1.8. “Service” means the online, Web-based service, including associated offline components, provided by SPLASH QX CLOUD via Third Party providers and/or other designated websites pursuant to a Free Trial or a Purchased Service.
1.9. “Subscription Term” means the period of time between the applicable Subscription Start Date and Subscription End Date as set forth in an Order Form. The Subscription Term for Free Trials is the earlier of (a) 30 days from the date of Service installation, or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service.
1.10. “User Guide” means the online user guide for the Service, accessible via the SPLASH QX CLOUD Customer Success Portal, as updated from time to time.
1.11. “Users” means Customer’s and its Affiliates employees, consultants, contractors, agents, or partners who are authorized to use the Service by Customer (or by SPLASH QX CLOUD at Customer’s request).
2.1. Provision of Service. SPLASH QX CLOUD shall, in compliance with all applicable local, state, federal, and foreign laws, make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement and any and all Order Forms executed hereunder from time to time. During the term of this Agreement, (i) the Service shall perform materially in accordance with the applicable User Guide(s), and (ii) the functionality of the Service will not be materially decreased from that available as of the Effective Date. Customer agrees that its purchase of subscriptions is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by SPLASH QX CLOUD with respect to future functionality or features.
2.2. Additional Users. User subscriptions are for named Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who have terminated an employment or some other prior relationship with Customer or no longer require ongoing use of the Service. Unless otherwise specified in the relevant Order Form the term of the additional User subscriptions shall be coterminous with the expiration of the then current Subscription Term.
3.1. SPLASH QX CLOUD Responsibilities. SPLASH QX CLOUD shall, (i) in addition to its confidentiality obligations under Section 6, not use, edit or disclose to any party other than Customer the Customer Data; (ii) maintain the security and integrity of the Service and the Customer Data; and (iii) use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, except for: (a) planned downtime; (b) any unavailability caused by circumstances beyond SPLASH QX CLOUD’ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving SPLASH QX CLOUD employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within SPLASH QX CLOUD’ possession or reasonable control, and network intrusions or denial of service attacks.
3.2. Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify SPLASH QX CLOUD promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Service; and (iv) virus check any file being uploaded or saved to the Service.
3.3. Use Guidelines. Subject to Customer’s compliance with all the terms and conditions of the Agreement, and subject to the termination provisions of the Agreement, SPLASH QX CLOUD grants to Customer a non-exclusive, non-transferable right during the Subscription Term to use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vi) attempt to gain unauthorized access to the Service or its related systems or networks: or (vii) use the Service in excess of the licensed quantity as set forth in the applicable Order Form. Affiliates’ use of the Service and related User Guide is subject to the following: (i) Customer ensures that each Affiliate agrees in writing to comply with the terms of the Agreement, and (ii) a breach of the Agreement by a Customer Affiliate shall be considered a breach by Customer hereunder.
3.4. Third-Party Providers. Certain third-party providers, some of which may be listed on pages within SPLASH QX CLOUD’ website, offer products and services related to the Service, including implementation, customization and other consulting services related to customers’ use of the Service and applications (both offline and online) that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality within the user interface of the Service through use of the Service’s application programming interface. SPLASH QX CLOUD does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by SPLASH QX CLOUD as “certified,” “validated” or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
4.1. User Fees. Customer shall pay all fees specified in all executed Order Forms hereunder. Except as otherwise provided, all fees are quoted in United States dollars. Fees are based on the number of User subscriptions purchased in the relevant Order Form, not the extent of actual usage. Except as otherwise provided, fees are non-refundable, and the number of subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Order Form.
4.2. Invoicing & Payment. License fees for the term of the Service will be invoiced in accordance with the terms set forth in the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net 30 days from the invoice date. Unless otherwise stated in the Order Form, all payments made under this Agreement shall be in United States dollars. Invoices submitted via email should be sent in individual attachments (one invoice per attachment) in either PDF or TIFF formats to an email address provided by Customer.
4.3. Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at SPLASH QX CLOUD’ discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4. Verification. Customer is responsible for monitoring its use of the Service to which Customer has subscribed. Customer shall promptly report to SPLASH QX CLOUD any suspected or actual use in excess of the authorized license quantity. SPLASH QX CLOUD shall, at its sole option, be permitted to monitor the usage of any Service to ensure compliance with Customer’s authorized license level. In the event SPLASH QX CLOUD becomes aware that Customer has used the Service in excess of the license quantity stated in the Order Form, SPLASH QX CLOUD may immediately invoice and Customer shall pay such underpaid fees for such excess usage based on the applicable fees set forth in the Order Form, and Customer shall execute an additional Order Form to document the required purchase of any additional quantities or levels. Such fees shall accrue from the date the excess use began. For the avoidance of doubt, Customer shall not be entitled to claim any reduction of the fees payable under the Order Form or reduce the Usage Metric during the Subscription Term or Renewal Term of an Order Form.
4.5. Suspension of Service. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, SPLASH QX CLOUD reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
4.6. Taxes. Unless otherwise stated, SPLASH QX CLOUD’ fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes“). Customer is responsible for paying all Taxes, excluding only taxes based on SPLASH QX CLOUD’ income. If SPLASH QX CLOUD has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides SPLASH QX CLOUD with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.1. Reservation of Rights. Customer acknowledges that in providing the Service, SPLASHQX.com utilizes (i) the Splash QX Cloud name, the Splash QX Cloud logo, the SplashQX.com domain name, the product and service names associated with the Service, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “SPLASH QX CLOUD Technology“) and that the SPLASH QX CLOUD Technology is covered by intellectual property rights owned or licensed by SPLASH QX CLOUD (collectively, “SPLASH QX CLOUD IP Rights“). Other than as expressly set forth in this Agreement, no license or other rights in or to the SPLASH QX CLOUD Technology or SPLASH QX CLOUD IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2. License Grant. SPLASH QX CLOUD grants Customer and its Users a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service in accordance with the terms of this Agreement.
5.3. Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or SPLASH QX CLOUD Technology; (ii) extract information from an Splash QX Cloud Object and pull into any other Object or create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, for the purposes of allowing non-SPLASH QX CLOUD Users to access information contained inside an Splash QX Cloud Object; or (iii) disassemble, reverse engineer, or decompile the Service or SPLASH QX CLOUD Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.
5.4. Customer Data. As between SPLASH QX CLOUD and Customer, all Customer Data is owned exclusively by Customer. Customer Data shall be considered Confidential Information subject to the terms of this Agreement. SPLASH QX CLOUD may access Customer’s User accounts, including Customer Data, solely at Customer’s request to respond to service or technical support issues.
6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, the SPLASH QX CLOUD Technology, business and marketing plans, technology and technical information, screen and product designs, and business processes. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
6.3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party shall, except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information. The Receiving Party shall be responsible for any use or disclosure of Confidential Information by any of its, and its affiliates, employees, contractors and/or agents.
6.4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7.1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. SPLASH QX CLOUD represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it owns or otherwise has sufficient rights to the Service and the SPLASH QX CLOUD Technology to grant the rights and licenses granted herein; and (iii) the Service and SPLASH QX CLOUD Technology do not infringe any intellectual property rights of any third party.
7.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SPLASH QX CLOUD MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SPLASH QX CLOUD HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1. Indemnification by SPLASH QX CLOUD. Subject to this Agreement, SPLASH QX CLOUD shall (a) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party, and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by SPLASH QX CLOUD in a monetary settlement of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to SPLASH QX CLOUD; (b) gives SPLASH QX CLOUD sole control of the defense and settlement of the Claim (provided that SPLASH QX CLOUD may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to SPLASH QX CLOUD, at SPLASH QX CLOUD’ cost, all reasonable assistance. Customer will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
8.2. Indemnification by Customer. Subject to this Agreement, Customer shall (a) defend, or at its option settle, any Claim made or brought against SPLASH QX CLOUD by a third party alleging that the Customer Data or Customer’s use of the Service (as opposed to the Service itself) infringes the intellectual property rights of, or has otherwise harmed, a third party and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by Customer in a monetary settlement of such Claim; provided, that SPLASH QX CLOUD (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases SPLASH QX CLOUD of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance. SPLASH QX CLOUD will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
9.1. Limitation of Liability. EXCEPT FOR A VIOLATION OF SECTION 4 (FEES AND PAYMENT) OR SECTION 5 (PROPRIETARY RIGHTS), NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT, EXCEPT FOR CAUSE OF ACTION INVOLVING THE EXCLUSIONS SET FORTH ABOVE, WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2. Term of User Subscriptions. User subscriptions are non-cancelable except in the event of breach as set forth in Section 10.4. User subscriptions commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified therein. At the end of the initial Subscription Term, the Service(s) described in the active Order Form(s) will auto-renew for a period specified in the Order Form, unless (i) Customer notifies SPLASH QX CLOUD at least forty-five (45) days in advance of their intent not to renew; or (ii) renewal Order Form(s) have already been negotiated. The Subscription fees for the auto-renew term will not increase over prior Subscription Term, unless (i) specified in the relevant Order Form; or (ii) SPLASH QX CLOUD notifies customer at least (45) day in advance of their intent to increase fees. In the event the Service is no longer generally available to commercial customers, this auto-renew provision will not apply.
10.3. Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete, from all Customer desktop, mobile, web and other environments, any SPLASH QX CLOUD provided software related to the Service. This includes managed packages or other software that has been installed in Customer’s environments. If requested by SPLASH QX CLOUD, SPLASH QX CLOUD may be present to validate uninstall activities. Customer will deliver a written statement to this effect.
10.4. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, SPLASH QX CLOUD shall refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.5. Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to SPLASH QX CLOUD prior to the effective date of termination.
10.6. Return of Customer Data. Upon request by Customer made within 30 days of the effective date of termination, SPLASH QX CLOUD will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. Customer shall pay service fees for any data migration activities. After such 30-day period, SPLASH QX CLOUD shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
10.7. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4, 5 (excluding Section 5.2), 6, 7, 8, 9, 10 and 11.
11.1. Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.
11.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7. Attorneys’ Fees. In any legal action or proceeding arising from, related to, or brought to enforce, construe, interpret, rescind or cancel this Agreement or any of its provisions (including any Order Forms executed hereunder), the prevailing party shall be entitled to recover from the other party reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, in addition to any other relief to which it may be entitled.
11.8. Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of Ohio, without regard to its conflicts of laws rules.
11.9. Venue. The state and federal courts located in Cuyahoga County, Ohio shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.10. Export Control Laws. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
11.11. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of such exhibit, addendum or Order Form shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
EXHIBIT A: SERVICE LEVEL AGREEMENT (“SLA”)
[(total – nonexcluded – excluded) *100] > 98%
total – excluded
For any partial calendar quarter during which Customer subscribes to the Service, general availability will be calculated based on the entire calendar quarter, not just the portion for which Customer subscribed. In addition, unavailability for some specific features or functions within the Service, while others remain available, will not constitute unavailability of the Service, so long as the unavailable features or functions are not, in the aggregate, material to the Service as a whole.
Claims may only be made on a calendar quarter basis and must be submitted within 10 business days after the end of the relevant quarter, except for periods at the end of a subscription agreement that do not coincide with a calendar quarter, in which case Customer must make any claim within 10 business days after the end of its subscription agreement.
All claims will be verified against applicable system records. Should any periods of downtime submitted by Customer be disputed, SPLASH QX CLOUD will provide to Customer a record of Service availability for the period in question. SPLASH QX CLOUD will only provide records of system availability in response to good faith Customer claims.
EXHIBIT B: PROFESSIONAL SERVICES TERMS
2.1. Scope. SPLASH QX CLOUD will provide such professional services as are specifically described in applicable SOW (“Professional Services”), and Customer will reasonably cooperate with SPLASH QX CLOUD with regard to Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
2.2. Acceptance. Configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof from Customer or 3 business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the Deliverable’s material failure to conform to its specifications. In response to rejection, SPLASH QX CLOUD may revise and redeliver the Deliverable, and thereafter the procedures of this Section 2.2 of this Exhibit B will repeat.
3.1. Payment. Customer will pay SPLASH QX CLOUD the fees based on the terms specified in each SOW.
3.2. Other Expenses. Customer shall reimburse SPLASH QX CLOUD for travel time and other expenses incurred in performance of Professional Services pursuant to the SPLASH QX CLOUD travel policy, so long as Customer has previously approved the expense or range of expenses in question.
4.1. Term. Each SOW will continue for the term set forth therein, if any.
4.2. Termination. Unless the SOW provides to the contrary, Customer may terminate an SOW for convenience upon 30 days’ written notice to SPLASH QX CLOUD. Either party may terminate a SOW for the other’s material breach of such SOW, including of any related obligations set forth in this Exhibit B, on 30 days’ written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate.
4.3. Effect of Termination. Upon termination of an SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay SPLASH QX CLOUD such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay SPLASH QX CLOUD the reasonable value of the Services received from SPLASH QX CLOUD up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW or this Exhibit B or this Agreement.
6.1. Intellectual Property. SPLASH QX CLOUD represents and warrants that, to the best of its knowledge as of the date of delivery, no Deliverable will infringe upon the intellectual property rights of any third party. SPLASH QX CLOUD’ sole responsibility and liability for breach of the warranty in the preceding sentence, and Customer’s sole remedy, shall be for SPLASH QX CLOUD: (1) to substitute substantially functionally similar products or services for the infringing Deliverable; (2) to procure for Customer the right to continue using the Deliverable; or if neither of the foregoing is commercially practical in SPLASH QX CLOUD’ reasonable judgment, (3) to terminate the SOW in question and refund to Customer 1/36th of the fees paid for the Deliverable for every month during which Customer is prevented from using it as a result of such infringement, during the first three years after delivery.
6.2. Professionalism & Function. SPLASH QX CLOUD warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. SPLASH QX CLOUD further warrants that Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and SPLASH QX CLOUD’ sole liability and responsibility for breach of any warranty in this Section 6.2. of this Exhibit B shall be for SPLASH QX CLOUD to re-perform the Professional Services in question, including creation of Deliverables, and Customer’s right to such remedy shall continue until 10 business days after delivery of the Professional Services or Deliverable in question.
8.1. Service vs. Professional Services. Professional Services are not part of the Service (as that term is defined in Section 1 of this Agreement).
8.2. Construction. The provisions of the main body of the Agreement govern SOW’s and this Exhibit B. In the event of a conflict, the provisions of this Exhibit B will prevail over those of a SOW (and the provisions of the main body of this Agreement will prevail over those of this Exhibit B). Neither party’s acts or omissions related to Professional Services, to a SOW, or to this Exhibit B, including without limitation breach of an SOW or of this Exhibit B, will give the other party any rights or remedies not directly related to the SOW in question. Without limiting the generality of the foregoing, SPLASH QX CLOUD’ breach of a SOW or of this Exhibit B will not give Customer the right to terminate this Agreement, the right to a refund of fees paid for the Service or of other fees not paid pursuant to such SOW, or the right to damages, specific performance, rescission, restitution, or other contract remedies based on the parties’ transactions set forth anywhere in this Agreement other than in the applicable SOW, as well as in this Exhibit B to the extent applicable to such SOW. In addition to such other limits of liability as apply, including pursuant to Section 9.1 of this Agreement, SPLASH QX CLOUD’ LIABILITY FOR ANY LOSS ARISING OUT OF OR RELATED TO A SOW SHALL BE LIMITED TO THE FEES PAID PURSUANT TO SUCH SOW. THE LIMIT OF LIABILTY IN THE PRECEDING SENTENCE IS SUBJECT TO THE PROVISIONS OF SECTION 9.1 OF THIS AGREEMENT.