TERMS OF SERVICES

IMPORTANT: PLEASE READ THESE TERMS OF SERVICES BEFORE ACCESSING, DOWNLOADING OR OTHERWISE USING THE QUANTIVO SERVICES. UNLESS YOU HAVE ENTERED INTO A SIGNED MASTER SERVICES AGREEMENT WITH QUANTIVO, THESE TERMS OF SERVICE (“TERMS”) ARE A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) EITHER AS AN INDIVIDUAL OR A SINGLE ENTITY, AND QUANTIVO CORPORATION (“QUANTIVO”) FOR ANY AND ALL SERVICES MADE AVAILABLE TO YOU THROUGH THE QUANTIVO WEBSITE. YOU AGREE TO BE BOUND BY THESE TERMS BY VIEWING, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SERVICES. IF YOU DO NOT AGREE, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SERVICES. IF YOU HAVE ENTERED INTO A MASTER SERVICES AGREEMENT WITH QUANTIVO, THE TERMS OF SUCH SIGNED AGREEMENT SUPERSEDE THESE TERMS.

1. SERVICES. Subject to the terms and conditions of these Terms and Customer’s payment of the applicable fees, Quantivo agrees to provide to Customer: (i) access to the current Quantivo behavior analytics offering set forth in an Order Form (the “Services”), subject to the restrictions and number of authorized users that are employees or contractors within Customer’s organization for which Customer has purchased user licenses as set forth on the Order Form; and (ii) the training set forth on the Order Form. The Services will be available online at the Customer designated URL as of the Activation Date, and the Services includes bug fixes or other minor enhancements or improvements thereto. “Activation Date” means the day following the issuance of user passwords to Customer to access the Services as set forth in Section 5 below. Additional upgrades (i.e. modifications, additions or substitutions that result in a substantial change, improvement or addition to the Services), if available, may be offered by Quantivo as part of the Customer Support agreement or at an additional charge. If any Customer contact information is false or fraudulent, Quantivo may terminate Customer's access to the Services in addition to pursuing any other legal remedies.
2. SERVICE LEVELS. If Customer purchase the Services directly from Quantivo, support for the Services shall be provided by Quantivo in accordance with Quantivo’s Service Level Agreement which is incorporated herein by reference. If Customer purchases the Services from an Authorized MSP, then support for the Services shall be provided to Customer by Customer’s Authorized MSP and Quantivo shall have no obligation to provide direct support to Customer under these Terms.
3. LICENSE GRANTS.
3.1 Services. Subject to the terms and conditions of these Terms, Quantivo hereby grants to Customer (subject to the authorized usage limits set forth in the applicable Order Form with respect to number of authorized users and data usage limitations), a non-exclusive, non-transferable, non-sublicensable license to access and use the Services via the Internet, solely for internal business purposes in accordance with any applicable end user documentation during the term.
3.2 Training Services. If Customer also purchases training services from Quantivo, then subject to the terms and conditions of these Terms, Quantivo hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the training materials provided by Quantivo ("Training Materials") during the term in conjunction with Customer's authorized use of the Services and internal business purposes. Customer shall have no right to sublicense the Training Materials or to reproduce, copy, modify, distribute outside of Customer's organization or sublicense the Training Materials. Quantivo owns all right, title and interest in and to the Training Materials.
4. LICENSE RESTRICTIONS. Customer shall not, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices from the Services; (vi) publish or disclose to third parties any evaluation of the Services without Quantivo 's prior written consent.
5. PASSWORDS/SECURITY.
5.1 Passwords. Quantivo or Customer’s Authorized MSP shall issue, a password for each user authorized to use Customer's account for whom Customer has paid the applicable fee. Customer and its users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user. Customer is entirely responsible for any and all activities that occur under the Customer's account and all charges incurred from use of the Services accessed with the Customer’s passwords. Customer agrees to immediately notify Quantivo of any unauthorized use of the Customer's account (including each password of each user accessing the Services by means of Customer's account) or any other breach of security known to Customer. Quantivo shall have no liability for any loss or damage arising from Customer's failure to comply with these requirements.
5.2 Security. Quantivo may maintain the Services at a reputable third party Internet service provider and hosting facility and will implement commercially reasonable security precautions to prevent unauthorized access to the Customer Data (as defined below). Customer acknowledges that, notwithstanding such security precautions, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and Customer Data (defined below). Accordingly, Quantivo cannot and does not guaranty the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
6. CUSTOMER DATA. As between Quantivo and Customer, Customer shall own all data, information or material that Customer enters into the Services or has entered on its behalf, such as, Customer's records or user behavior ("Customer Data"). Quantivo may access Customer’s account and Customer Data from time to time as Quantivo deems necessary, solely for purposes of support, administration and invoicing related to Customer’s use of the Services. Except as permitted in these Terms, Quantivo will not edit, delete or disclose the contents of Customer Data unless authorized by the Customer or unless Quantivo is required to do so by law or in the good faith belief that such action is necessary to: (1) conform with applicable laws or comply with legal process served on Quantivo; (2) protect and defend the rights or property of Quantivo; or (3) enforce these Terms. Quantivo may provide user statistical information related to the usage of the Services such as usage or traffic patterns in aggregate form to third parties, but such information will not include identifiable information of Customer or personally identifying information for Customer’s employees or authorized contractors. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data and Quantivo assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of the Services to store any Customer Data.
7. CUSTOMER OBLIGATIONS.
7.1 Hardware. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Services, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Services.
7.2 Conduct. Customer shall be solely responsible for its actions and the actions of its users while using the Services and the contents of its transmissions through the Services (including, without limitation, Customer Data). Customer agrees: (1) to abide by all local, state, national, and international laws and regulations applicable to Customer's use of the Services, including without limitation all laws regarding the transmission of technical data exported from the United States through the Services; (2) not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services or another's computer; (3) not to use the Services for illegal purposes; (4) not to interfere or disrupt networks connected to the Services; (5) not to promote or transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature; (6) not to transmit any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (7) not to interfere with another customer's use and enjoyment of the Services or another entity's use and enjoyment of similar services; and (8) to comply with all regulations, policies and procedures of networks connected to the Services. Customer acknowledges and agrees that Quantivo neither endorses the contents of any customer communications or Customer Data nor assumes any responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. Quantivo may remove any violating content transmitted through the Services, without notice to Customer.
8. FEES AND TAXES.
8.1 Fees. Customer agrees to pay the applicable fee(s) set forth in the Order Form for users in accordance with the fees, charges, and billing terms set forth in these Terms (“Fees”). Except as otherwise provided in the Order Forms, all Fees are quoted in the United States currency. Except as otherwise provided in these Terms, Fees are non-refundable. In addition to such Fees, Customer shall pay all applicable sales, use and other taxes or duties (excluding taxes based on Quantivo's net income). Customer is responsible for all fees associated with attending training at Quantivo's location (i.e. travel and lodging) and for reimbursing Quantivo for travel and lodging costs for training onsite at Customer's location, all if and as specified on the applicable Order Form.
8.2 Payments. If Customer is purchasing through Authorized MSP, all fees for the Services, training and/or training under each Order Form shall be paid by Customer to the Authorized MSP. If Customer is purchasing direct from Quantivo, fees for the Services will be invoiced in advance in accordance with payment frequency and other terms set forth in the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due within thirty (30) days from the invoice date. Any payment not received from the Customer by the due date shall accrue, at the lower of 1.5% of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. Customer shall also pay all sums expended (including reasonable legal fees) in collecting overdue payments. If Customer believes that the bill is incorrect, Customer must contact Quantivo in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. TERM. The Services shall commence on the Activation Date and shall continue for a term specified in the applicable Order Form. Thereafter, these Terms will automatically renew subject to Customer’s payment of the applicable fees, for additional one (1) year periods (except if a different renewal period is specified in an Order Form), unless either party gives the other party notice of its intent not to renew at least ninety (90) days prior to the end of the initial term or any renewal term. Termination will be effective at the end of the applicable term in which such notice is received. Customer shall be responsible for all Fees for the applicable term in which termination occurs, and Quantivo shall not issue any refunds for such term.
10. TERMINATION.
10.1 Breach. Except as provided in Section 10.3 below, either party may terminate these Terms upon written notice if the other party has breached a material term of these Terms and has not cured such breach within thirty (30) days of receipt of notice from the non-breaching party specifying the breach.
10.2 Insolvency. Either party may terminate these Terms if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor's relief law; or (iv) the other party is liquidated or dissolved.
10.3 Failure to Pay/Conduct. Quantivo may suspend or terminate the Services, at its sole option, with or without notice to Customer if: (i) any payment by Customer to Quantivo (either direct or through Customer’s Authorized MSP) for the Services is delinquent by more than sixty (60) days, (ii) Customer breaches any provision of Section 7.2, or (iii) the agreement between Quantivo and Customer’s Authorized MSP, if applicable, is terminated.
10.4 Effect of Termination. Quantivo shall not be liable to Customer or any third party for suspension or termination of the Services in accordance with these Terms. If Customer or Quantivo terminates these Terms, Customer will be obligated to pay the balance due for all Services provided prior to termination. Upon the effective date of expiration or termination of these Terms for any reason, whether by Customer or Quantivo, Customer's right to use the Services shall immediately cease. Sections 6, 7.2, 10, 11, 12, 13.2, 15 and 16 of these Terms shall survive its expiration or termination for any reason. Quantivo shall retain Customer Data for a period of thirty (30) days after expiration or termination of these Terms. Customer may request that Quantivo conduct a mass export of Customer Data, and Quantivo agrees to provide such services to Customer or its Authorized MSP at its then current rates on a time and materials basis. After thirty (30) days, Quantivo may delete and destroy all Customer Data without notice or further liability to Customer.
11. PROPRIETARY RIGHTS. Customer acknowledges that the Services and all content contained therein, including but not limited to text, software, photographs, video, graphics, and third party materials, excluding any Customer Data, (collectively, "Content") is proprietary to Quantivo or such third parties, and Quantivo or such third parties retain exclusive ownership of the same throughout the world, including all related copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights thereto. Except as expressly stated herein, these Terms does not transfer any right, title or interest in the Services or the Content to the Customer.
12. CONFIDENTIALITY.
12.1 Obligations. Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of these Terms that a party knows or reasonably should know is considered confidential by the disclosing party (‘Confidential Information’). The parties hereby agree that Confidential Information includes the terms and conditions of these Terms, and any discussions related thereto. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.
12.2 Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of these Terms; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
12.3 Destruction or Return of Confidential Information. Upon expiration or termination of these Terms for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.
13. LIMITED WARRANTY AND WARRANTY DISCLAIMER.
13.1 Limited Warranty. Quantivo warrants that the Services will perform substantially in accordance with the functions described in the documentation provided by Quantivo under normal use and circumstances by authorized users of the Services. For any breach of this warranty, the Customer's sole and exclusive remedy and Quantivo's sole and exclusive liability shall be for Quantivo to correct any reported failure in the Services causing a breach of this warranty through the provision of support services in accordance with Section 2 above (either to Customer directly or through Customer’s Authorized MSP). If Quantivo is unable to provide such correction through the support services, the Customer shall be entitled to recover that prepaid portion of the Fees in respect of the non-conforming Services.
13.2 Disclaimer. EXCEPT AS EXPRESSLY STATED IN SECTION 13.1, THERE ARE NO WARRANTIES OR CONDITIONS (WHETHER IMPLIED OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) FOR THE CONSULTING, TRAINING, SERVICES, TRAINING MATERIALS, REPORTS OR SUPPORT. QUANTIVO DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES AND CONDITIONS INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE. QUANTIVO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET THE CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, QUANTIVO DOES NOT WARRANT THAT ALL ERRORS IN THE SERVICES CAN OR WILL BE CORRECTED. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS DONE AT CUSTOMER'S OWN DISCRETION AND RISK, AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
14. INDEMNIFICATION.
14.1 By Quantivo. Quantivo shall indemnify, defend, or at its option settle, any third party claim or suit against Customer based on a claim that the technology used to provide the Services infringes any United States patent, copyright, trademark or trade secret and Quantivo shall pay any final judgment entered against Customer in any such proceeding or agreed to in settlement; provided (a) Quantivo is promptly notified in writing of such claim or suit, (b) Quantivo or its designee has sole control of such defense and/or settlement, and (c) Customer gives all information and assistance requested by Quantivo or such designee. To the extent that use of the Services is enjoined, Quantivo may at its option either (i) procure for Customer the right to use the Services, (ii) replace the Services with other suitable products, or (iii) refund the prepaid portion of the Fee(s) paid by Customer for the Services or the affected part thereof. Quantivo shall have no liability under this Section 14 or otherwise to the extent a claim or suit is based upon (a) use of the Services in combination with software or hardware not provided by Quantivo if infringement would have been avoided in the absence of such combination, (b) modifications to the Services not made by Quantivo, if infringement would have been avoided by the absence of such modifications, (c) use of any version other than a current release of the Services, if infringement would have been avoided by use of a current release, or (d) any action or omission of Customer for which Customer is obligated to indemnify Quantivo under Section 14.2 below.
THIS SECTION 14 STATES QUANTIVO’S ENTIRE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS BASED ON THE SERVICES.
14.2 By Customer. Customer shall indemnify, defend, or at its option settle, any third party claim or suit against Quantivo based on a claim: (i) of any breach of Section 7.2 of these Terms by Customer, its affiliates, employees agents, successors and assigns; and (ii) relating to or based upon the Customer Data or the activities conducted by Customer using the Services; and Customer shall pay any final judgment entered against Quantivo in any such proceeding or agreed to in settlement; provided (a) Customer is promptly notified in writing of such claim or suit, (b) Customer or its designee has sole control of such defense and/or settlement, and (c) Quantivo gives all information and assistance requested by Customer or such designee.
15. LIMITATION OF LIABILITY.
15.1 Limitation on Direct Damages. IN NO EVENT SHALL QUANTIVO'S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES THAT DIRECTLY GAVE RISE TO THE DAMAGES CLAIMED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT OR TORT, INCLUDING NEGLIGENCE.
15.2 Disclaimer of Consequential Damages. IN NO EVENT SHALL QUANTIVO OR ITS SUPPLIERS BE LIABLE (A) FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), OR (B) TO THIRD PARTIES CLAIMING THROUGH CUSTOMER; EVEN IF QUANTIVO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.3 Essential Purpose. The essential purpose of this Section 15 is to limit the potential liability of the parties arising under these Terms. The parties acknowledge that the limitations set forth in this Section 15 are intricate to the amount of consideration levied in connection with the license of the Services and that, were Quantivo to assume any further liability, such consideration would out of necessity, been set much higher.
16. GENERAL. All notices to a party shall be in writing and sent to the addresses specified in these Terms and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Neither these Terms nor any Services license may be assigned or transferred by Customer, by merger, operation of law or otherwise, without Quantivo's prior written consent. These Terms may be amended or superseded only by a written instrument signed by both parties. These Terms shall be governed by the laws of the State of California, excluding its conflict of laws rules. The parties agree that the Uniform Computer Information Transactions Act (UCITA) is hereby excluded from application to these Terms and the parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from these Terms. Any provision of these Terms held to be unenforceable shall not affect the enforceability of any other provisions of these Terms. In the event of any conflict between the terms of these Terms and the terms of any agreement, the terms of these Terms shall control. Neither party shall be in default if its failure to perform any obligation under these Terms is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements. Quantivo may use Customer’s name as part of a general list of customers and may refer to Customer as a user of the Services in its general advertising and marketing materials. Each party shall obtain the other party's permission prior to using the other party's name for any other marketing or promotional purposes. The parties agree that any press release or other public comments issued by either party relating to these Terms, any dispute under these Terms or Customer's use of the Services, will be prepared jointly between Quantivo and Customer and will be issued upon mutual agreement of the parties. Pre-printed terms and conditions on or attached to any Customer purchase order shall be of no force or effect.