Terms and Conditions
Terms and Conditions
Effective as of: 13th October 2022
These Terms and Conditions (the “General Terms”), together with (1) all terms and conditions set forth in or incorporated into the online order form or similar form into which these General Terms are incorporated (the “Order Form”) and (2) all SOWs and Change Orders (as defined below), are a legally binding agreement between you (“Customer”) and the Quincus entity identified in the Order Form (“Quincus”). The General Terms, the Order Form and all SOWs and Change Orders are collectively the “Agreement.” It is very important that Customer carefully reads and understands the terms and conditions of this Agreement. By clicking the “Pay & Subscribe” button or any similar mechanism indicating acceptance of the Order Form, Customer hereby agrees to be bound by and comply with the terms and conditions of this Agreement. If Customer is entering this Agreement on behalf of an entity, Customer represents to Quincus that Customer has authority to bind, and is hereby binding, such entity to this Agreement, and such entity shall be deemed to be “Customer” for purposes of this Agreement. This Agreement will be effective as of the date that Customer clicks the “Pay & Subscribe” button or any similar mechanism indicating acceptance of the Order Form (the “Agreement Effective Date”). IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DOES NOT HAVE THE AUTHORITY TO SO BIND SUCH ENTITY, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION OR ANY LICENSED MATERIALS OR SERVICES.
Customer acknowledges and agrees that the Fees and rates, Transaction and User limits, Product suites and descriptions, and other Subscription-related terms and conditions for any Subscription not purchased by Customer that are set forth in the Order Form, Quincus’s websites or mobile applications, marketing, promotional or advertising materials, or any other Quincus materials (collectively, “Subscription Information”) are for informational purposes only and may be changed by Quincus at any time, and the Order Form is not and shall not be deemed a guarantee that any such terms and conditions will apply to any other Subscription to which Customer may subscribe from time to time, including via any Change Order.
1. Subscription; Services
1.1 License; Subscription Activation and Trial Period.
a) Subject to Customer’s payment of Fees (as defined below) and compliance with the terms and conditions of this Agreement (including without limitation the usage restrictions and limitations set forth in the Order Form), Quincus hereby grants to Customer a non-exclusive, non-transferable (except as expressly set forth in Section 9.10), nonsublicensable, limited license to use (i) the software-as-a-service web-based or mobile-based software products (“Products”) that are provided as part of the subscription purchased by Customer under the Order Form (the “Subscription”), (ii) technical documentation provided by Quincus with the Products (the “Documentation”) and (iii) software, Product customizations, documentation and other items and materials that Quincus makes available to Customer in connection with the Services (as defined below) (“Deliverables”) ((i) through (iii) collectively, the “Licensed Materials”), in each case solely during the Term for Customer’s internal business purposes.
b) If Customer has purchased a Subscription online via Quincus’s website or mobile application, Quincus will send an email containing account credentials approximately one to two business days after the purchase (the “Credentials Notification”). A trial period (the “Trial Period”) will commence on the date the Credentials Notification is sent and continue for seven days. During the Trial Period, Customer may use its Subscription subject to all terms and conditions of this Agreement, except that Customer (i) will not be billed for the Trial Period and (ii) may cancel the Subscription without penalty at any time during the Trial Period as directed by Quincus (which cancellation shall be deemed a termination subject to Section 8.3). Billing will commence on the day immediately following the end of the Trial Period (i.e., the eighth day after the date of the Credentials Notification). After the Trial Period, Customer may terminate the Subscription only in accordance with this Agreement.
1.2 Third-Party Use.
a) Employees, agents and contractors of Customer or any of its Affiliates (as defined below) (collectively, “Users”) may use the Licensed Materials provided that (i) such use is solely in direct support of Customer’s or the applicable Affiliate’s respective internal business purposes, and, in the case of contractors, solely for an engagement expressly authorized by Customer or the applicable Affiliate, (ii) such use is solely in accordance with the restrictions and limitations set forth in this Agreement (including the concurrent User limit applicable to the Subscription), (iii) any such User that is a contractor may not, without Quincus’s prior written consent, be a company that is a direct competitor of Quincus, and (iv) Customer ensures that, upon conclusion of the engagement of any such contractor, all Licensed Materials are promptly returned to Customer or the applicable Affiliate or destroyed, and Customer shall, upon Quincus’s request, require that such contractor certify in writing to Quincus and shall itself certify in writing to Quincus that any Licensed Materials not returned to Customer or the applicable Affiliate have been destroyed. “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with Customer, but only for so long as such Control exists, where “Control” means the power to direct or cause the direction of the management and policies of the controlled entity, whether through the ownership of voting securities or other ownership interests, by contract or otherwise.
b) Each Affiliate and User must honor the terms and conditions of this Agreement that are applicable to Customer. Any act or omission by any Affiliate or User shall be deemed Customer’s act or omission for purposes of this Agreement.
c) Customer shall be responsible for maintaining the confidentiality of all administrative and user accounts used to access or use the Licensed Materials (including any sub-accounts created by Customer for any Affiliate or User), associated log-in credentials and passwords, and activities that occur under such accounts, and shall ensure that Users do not share their respective log-in credentials and passwords. Customer’s accounts are for Customer’s and its Affiliates’ respective internal business use only. Customer shall use commercially reasonable efforts to prevent unauthorized access to and use of such accounts and Licensed Materials. Customer shall notify Quincus immediately if Customer knows of or suspects any such unauthorized access or use and shall use its best efforts to promptly terminate, and assist Quincus in terminating, such access or use.
1.3 Use Restrictions and Related Definitions.
a) Except as expressly permitted in this Agreement, Customer shall not, and shall not permit Affiliates or Users to: (i) lease, rent, loan, license or sublicense Licensed Materials, provide service bureau, time sharing, outsourcing, data processing or other services to third parties with Licensed Materials, or otherwise permit the use of or access to any Licensed Materials by or for the benefit of any third party; (ii) assign, sell, pledge, charge, encumber, transfer or otherwise dispose of any Licensed Materials or the rights granted hereunder to any third party, whether voluntarily, by operation of law or otherwise; (iii) remove or destroy, or permit others to remove or destroy, any proprietary markings of Quincus or other persons that may appear on any components of the Licensed Materials; (iv) use any Licensed Materials for any unlawful or fraudulent purpose or in any manner that competes with Quincus’s business (including without limitation the development of any product or service that is similar to any Licensed Materials or Services) or that is outside the scope of this Agreement; (v) copy (except to the extent necessary for Customer’s internal business use), translate, decompile, disassemble or reverse engineer any Licensed Materials or attempt to reproduce or discover the source code of any Licensed Materials; (vi) modify, adapt, enhance, improve, revise or create derivative works (collectively, “Derivative Works”) based on any Licensed Materials; (vii) engage in web scraping or data scraping, mining, extraction or harvesting on or related to any Licensed Materials, including without limitation collection of information through any software that simulates human activity or any bot or web crawler; (viii) use any Licensed Materials for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any other gambling-related activity, the offering for sale, sale or distribution of illicit or illegal drugs, knives, guns or other weapons, or any purpose relating to regulated businesses for which Customer does not have all required governmental, legal and regulatory licenses, consents and permits; (ix) attempt to gain unauthorized access to any Licensed Materials or Quincus’s systems, servers, applications, databases or networks; or (x) use any Licensed Materials for any purpose other than as expressly permitted under this Agreement (including without limitation the conduct of load testing or penetration testing).
b) “Transaction” “Transaction” means the processing a Shipment ID in the Quincus Platform. “Shipment” means the transport of goods related to a unique Shipment ID (attributed to the smallest trackable unit in the platform at any given point in the platform’ journey) through one or more Locations to a single Address. “Location” means an address added by Customer within the Quincus Product in accordance with applicable Documentation, including hubs, sorting facilities and any other place from, through or to which a Shipment may transit. “Address” means a collection of information used to designate the Location for pick-up or drop-off of a Shipment.
1.4 Export Restrictions. Customer acknowledges that the Licensed Materials may be subject to export control laws. Accordingly, Customer shall not, directly or indirectly, export or permit the use of Licensed Materials (a) in violation of any applicable export laws, (b) to or in the Crimean Federal District, Cuba, Iran, North Korea, Sudan, or Syria, or (c) to or in any country subject to an applicable trade embargo or sanction or to or by any resident or nation of those countries, or to or by any person, organization, or entity on any of the restricted parties lists maintained by any United States government agency or any government agency with jurisdiction over Customer’s activities under this Agreement. Customer shall indemnify, defend and hold harmless Quincus, its affiliates, and the respective directors, officers, employees, contractors, agents, representatives, suppliers and owners of each of the foregoing from and against any and all loss, liability, damages, costs and expenses, including attorneys’ fees and other costs of legal defense, arising out of or related to Customer’s breach of this Section 1.4.
1.5 Third-Party Materials. Customer acknowledges and agrees that the Products and software Deliverables may require or otherwise interoperate with third-party hardware, software, integrations, tools and other materials (collectively, “Third-Party Materials”). Except to the extent Third-Party Materials are provided by Quincus as incorporated into Licensed Materials to enable Customer to access or use Licensed Materials through Quincus’s hosting services, (a) Customer is solely responsible for obtaining the right to use all Third-Party Materials from the owner thereof and paying directly to such owner the fees for such Third-Party Materials, and (b) Quincus has no responsibility, liability or obligation with respect to any Third-Party Materials.
a) Quincus shall provide (i) implementation, maintenance and support, and hosting services with respect to the Products in accordance with Schedule A and (ii) other services that are set forth in any statement of work (each, a “SOW”) between the parties that is expressly made subject to or part of the Order Form or these General Terms (collectively, the “Services”). In the event of any conflict between this Agreement and any SOW, this Agreement shall control except to the extent the SOW expressly supersedes this Agreement by acknowledgement of the conflict and reference to the superseded provision.
b) In the event that Quincus configures, implements or integrates Third-Party Materials that are not provided by Quincus as incorporated into Licensed Materials (“Third Party Integration Services”), then notwithstanding anything to the contrary herein, (i) such Third Party Integration Services are provided on an “as-is” basis, (ii) Quincus shall not be responsible or liable for (A) any such Third Party Integration Services or Third-Party Materials, (B) any costs, expenses or damages arising from such Third Party Integration Services, whether incurred by third parties or Customer, (C) the reliability or availability of any such Third Party Integration Services or Third-Party Materials, or (D) any interruptions that impact the availability of any such Third Party Integration Services or Third-Party Materials, and (iii) Customer shall collaborate in good faith to facilitate the Third Party Integration Services as requested by Quincus, including sharing information and documentation relating to existing integrations and liaising with the third parties.
c) When applicable, the SOW may set out the schedule for the provision of applicable Services and/or Deliverables, including estimated start date(s), estimated end date(s) and/or relevant milestones. Any such schedule will be an estimate of the anticipated progress for the Services and/or Deliverables and not a commitment to start or complete any Services or deliver any Deliverables by a specific date.
1.7 Customer Obligations.
a) Customer shall be responsible for providing, at no cost to Quincus and on a timely basis, such materials, data, information, supplies and cooperation, as well as access to Company personnel, premises, networks and systems (collectively, “Cooperation”), as reasonably necessary for the performance of Services or provision of Licensed Materials. Customer acknowledges and agrees that (i) Customer’s timely provision of Cooperation reasonably requested by Quincus may be essential to performance of Services and/or provision of Licensed Materials, (ii) Quincus will not be liable for any delay or deficiency in providing Services or Licensed Materials if such delay or deficiency results from Customer’s failure to provide appropriate Cooperation, and (iii) such delays or deficiencies may require an adjustment to the schedule and/or Fees for the Services and Licensed Materials consistent with the scope and duration of the delay or deficiency.
b) Customer shall obtain all rights, permissions and consents from its Affiliates and Users and any other third parties that are necessary for Customer to perform its obligations under this Agreement (including the grant of rights and licenses to Quincus).
c) Customer shall ensure that (i) its hardware and software systems that interact with any Licensed Materials comply with the Documentation (if applicable) and all other specifications and requirements as may be reasonably imposed by Quincus to facilitate provision of the Licensed Materials and Services, (ii) Users agree to and comply with all end user terms that may be applicable to their use of Quincus’s online properties (including mobile applications), and (iii) Users enable and opt in to all functionality (including without limitation geotracking and in-app, push, SMS and e-mail notifications) within such online properties that is necessary for receipt or use of the Licensed Materials and Services.
1.8 Project Management. Prior to the commencement of the Services, each party shall appoint a primary contact person and a deputy (“Representatives”). Each party’s initial Representatives may be listed in the Order Form. The Representatives may be replaced by the appointing party from time to time by written notice to the other party. Each of the Representatives shall be authorized to accept and issue instructions in connection with this Agreement on behalf of their appointing party, and the parties shall ensure that all communication hereunder regarding business matters is conducted via the Representatives. Notwithstanding the foregoing, Quincus may from time to time designate a project team responsible for the provision of the Products and Services. Customer acknowledges that Quincus may during the Term remove and replace members on such project team, provided that Quincus shall use reasonable efforts to ensure minimal disruption to the provision of the Products and Services. Following Customer’s reasonable request (but in any event no more than once a month during the Term), the Representatives of the parties shall meet (which meeting shall be by telephone conference or internet-based conference unless otherwise agreed by the parties) to discuss the status or other details of the Licensed Materials and Services.
1.9 Change Orders. Customer may submit a change request to change, reduce or supplement its Subscription or any Service by contacting its Quincus Representatives, which request must include “Change Request” in the subject line and a description of the requested change. Quincus will respond to the change request within a reasonable time after its receipt thereof, and in its sole discretion may elect to reject the request or initiate discussions with Customer regarding the request. No change request shall be effective unless documented in a change order between the parties that is expressly made subject to or part of the Order Form or these General Terms (each, a “Change Order”). Quincus is not obligated to agree to any Change Order. Customer acknowledges and agrees that any requested change, reduction or supplement may incur additional Fees, including implementation and other Services Fees and increased Subscription Fees. All Change Orders are governed by this Agreement. Customer’s Subscription, as modified by any Change Order, shall be deemed Customer’s Subscription for purposes of this Agreement as of the effective date of such Change Order. In the event of any conflict between these General Terms and any Change Order, these General Terms shall control except to the extent the Change Order expressly supersedes these General Terms by acknowledgement of the conflict and reference to the superseded provision.
1.10 Proprietary Rights. Licensed Materials, all output created by or on behalf of Quincus or any of its affiliates or otherwise resulting from the Services (including all tools, know-how, methodologies, processes, technologies, software, documentation, systems, modules, code (both source and object), algorithms and development platforms), and all information, technology and materials used by or on behalf of Quincus or any of its affiliates to provide any Licensed Materials (excluding Customer Data and Customer’s Confidential Information, each as defined below) (collectively, the “Quincus Materials”) are and shall remain the exclusive property of Quincus. Except for the rights to Licensed Materials expressly granted to Customer hereunder, Quincus hereby retains all right, title and interest in, to and under the Quincus Materials. Customer shall immediately inform Quincus of, and hereby assigns to Quincus all right, title and interest in and to, any and all Derivative Works based on any Quincus Materials created by or on behalf of Customer or any Affiliate or User.
2. Warranties; Disclaimers
2.1 Mutual Warranties. Each party represents and warrants to the other party that: (a) it is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the power and authority to enter into and perform its obligations under this Agreement; (b) the person executing and delivering this Agreement on behalf of such party is duly authorized to make such execution and delivery; (c) this Agreement constitutes a valid obligation, binding upon and enforceable against such party in accordance with its terms; (d) execution and delivery of this Agreement and the performance of such party’s obligations do not breach any contract between such party and any third party; and (e) it shall comply with all applicable laws, rules and regulations in its performance under this Agreement.
2.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LICENSED MATERIALS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, QUINCUS EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. QUINCUS DISCLAIMS ANY WARRANTY THAT THE QUINCUS MATERIALS OR SERVICES WILL BE ERROR FREE, THAT THE OPERATION OF ANY LICENSED MATERIALS WILL BE UNINTERRUPTED OR THAT ANY ERRORS IN THE QUINCUS MATERIALS OR SERVICES WILL BE CORRECTED. QUINCUS MAKES NO WARRANTY AS TO THE RESULTS OR ACCURACY OF INFORMATION OBTAINED THROUGH USE OF THE LICENSED MATERIALS OR SERVICES. QUINCUS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY UNAVAILABILITY OF LICENSED MATERIALS OR SERVICES RESULTING FROM FAILURES OF THIRD-PARTY INTERNET OR TELECOMMUNICATIONS PROVIDERS OR ANY ROUTE OPTIMIZATION PROVIDED VIA THE LICENSED MATERIALS OR SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) CERTAIN LICENSED MATERIALS AND SERVICES MAY BE MADE AVAILABLE THROUGH QUINCUS’S ONLINE PROPERTIES (INCLUDING MOBILE APPLICATIONS) AND (B) QUINCUS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DELAY, LOSS, OUTAGE, ERROR, DEFECT OR FAULT IN ANY LICENSED MATERIALS OR SERVICES OR OTHER NON-PERFORMANCE HEREUNDER TO THE EXTENT RESULTING FROM ANY INACCURACY, ERROR, DEFECT OR ILLEGALITY OF OR IN ANY CUSTOMER DATA OR ANY USER’S DISABLING OR MODIFICATION OF, FAILURE TO OPT IN TO, OR ELECTION TO OPT OUT FROM, ANY FUNCTIONALITY OR FEATURES OF SUCH ONLINE PROPERTIES (INCLUDING WITHOUT LIMITATION GEOTRACKING AND IN-APP, PUSH, SMS AND E-MAIL NOTIFICATIONS).
3. Customer Data
3.1 License to Customer Data. Customer hereby grants Quincus a license to access, process and use (and permit its affiliates and contractors to access, process and use) data that is entered into or otherwise provided via any Product by Customer or any Affiliate or User or collected from Customer or any Affiliate or User via any Quincus online property (“Customer Data”) (a) to perform Quincus’s obligations and exercise its rights under this Agreement, (b) to monitor, improve, benchmark, track feature usage, support and operate the Licensed Materials or Services, and (c) as required by applicable law.
3.2 Risk of Exposure for SaaS Software. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using any Product, Customer assumes such risks, and (b) Quincus offers no representation, warranty or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
3.3 Customer’s Responsibility for Customer Data. Customer is solely responsible for the accuracy, quality, legality, reliability and appropriateness of the Customer Data, and shall ensure that the Customer Data and its processing and use as contemplated by this Agreement will not infringe or otherwise violate any intellectual property or proprietary right of any third party, constitute negligent advice or contain any negligent statement, violate any applicable law, rule or regulation, or contain or result in the transmission of any virus, disabling device, security vulnerability, malware, malicious code, time bomb, Trojan horse, back door, drop dead device, worm, or key.
3.4 Data Deletion for SaaS. Except as otherwise required by applicable law, Quincus may permanently erase Customer Data if Customer’s Subscription is terminated for 30 days or more. Upon Customer’s request during such 30-day period, Quincus shall return Customer Data to Customer in a reasonable format.
3.5 Aggregate & De-Identified Data. Notwithstanding anything to the contrary in this Agreement, Quincus and its affiliates may use aggregated Customer Data that has been de-identified in accordance with applicable law, as well as Addresses, Locations and analytics data deriving from or relating to Customer’s use of Products or Services or server log files, for Quincus’s and its affiliates’ respective internal business purposes.
3.6 Personal Data. Each party shall (a) comply with all applicable laws, rules and regulations in connection with its collection, use, disclosure and processing of data that identifies, relates to or is capable of being linked to an individual (“Personal Data”) and (b) implement appropriate technical, administrative and organizational measures designed to protect against unauthorized, unlawful and accidental disclosure, loss or destruction of Personal Data. Quincus and Customer acknowledge and agree that in the event Quincus or any of its affiliates is deemed to be processing Personal Data on Customer’s behalf, (i) Quincus and Customer shall reasonably negotiate in good faith any supplemental agreements that are required to be entered into by applicable law in connection with such processing of, or any cross-border transfer of, such Personal Data, and (ii) Customer hereby consents to (A) such processing for the purposes of performing (or enabling the performance of) any and all obligations under this Agreement and for the internal business purposes of Quincus and its affiliates (including but not limited to data analytics, machine learning and improvement of their respective technology and systems) and (B) the transfer of such Personal Data to Quincus’s affiliates, agents, representatives and subcontractors anywhere in the world. Customer represents, warrants and covenants that it has all necessary rights, consents and authorizations to provide all Personal Data to Quincus and to authorize and instruct Quincus to use and disclose the Personal Data as contemplated by this Agreement, and that all such uses and disclosures comply with applicable law.
4. Fees & Payment
4.1 Fees. Customer shall pay Quincus the fees set forth in the Order Form, SOWs and Change Orders (if applicable) (the “Fees”). Customer shall also reimburse Quincus for reasonable out-of-pocket travel and other expenses incurred in performing the Services and providing Deliverables, including without limitation any per diems and mileage reimbursements charged in lieu of actual expenses, in accordance with Quincus’s standard expense guidelines or as otherwise outlined in the applicable SOW or Order Form. All amounts due under this Agreement shall be paid in the currency specified in the Order Form. In the event that Customer exceeds the monthly User limit then applicable to Customer’s Subscription, Customer will be charged Quincus’s then-current additional concurrent User Fee applicable to Customer’s Subscription type for each additional User (the “Additional User Fee”). In the event that Customer exceeds the monthly Transaction limit then applicable to Customer’s Subscription, Customer will be charged Quincus’s then-current fee applicable to Customer’s Subscription type for each excess Transaction (the “Additional Transactions Fee”). Unused Transactions do not roll over to any subsequent month, and no refund will be paid for any unused Transactions. No refund will be paid for any unused concurrent User licenses. Any reference in a SOW to the total Services Fees for any Services or Deliverables performed or provided on a time and materials basis will be an estimate of Services Fees and not a commitment to complete any such Services or deliver any associated Deliverables for a maximum amount of Services Fees.
4.2 Invoicing & Payment. Base Subscription Fees will be invoiced monthly or annually (as set forth in the Order Form) in advance and paid by Customer within 30 days after its receipt of the applicable invoice (or, if applicable per the terms of Customer’s Subscription, may be automatically charged to Customer’s payment method when the applicable invoice is issued). Additional User Fees and Additional Transaction Fees will be charged only for the month in which Customer exceeds the applicable limit, billed on Customer’s next invoice, and paid by Customer within 30 days after its receipt of the applicable invoice (or, if applicable per the terms of Customer’s Subscription, may be automatically charged to Customer’s payment method when the applicable invoice is issued). Incremental Subscription Fees (i.e., Fees for additional Transactions and User licenses that Customer elects to purchase on a monthly subscription basis by notice to Quincus, thereby increasing Customer’s monthly Transaction and/or User limits, as applicable) will be invoiced monthly in advance and paid by Customer within 30 days after its receipt of the applicable invoice (or, if applicable per the terms of Customer’s Subscription, may be automatically charged to Customer’s payment method when the applicable invoice is issued). Services Fees will be invoiced in accordance with the applicable SOW or Order Form, provided that if no invoice procedure is specified in the applicable SOW or Order Form, such Fees shall be paid to Quincus within 30 days after Customer’s receipt of the applicable invoice (or, if applicable, may be automatically charged to Customer’s payment method when the applicable invoice is issued). Customer shall be responsible for promptly resolving any problems with its automatic payment method. In the event Customer reasonably disputes any invoiced amount, Customer may withhold such disputed amount provided that Customer (a) notifies Quincus of the disputed amount and Customer’s reasons for disputing such amount prior to the date the invoice therefor is due and (b) pays the undisputed portion of such invoice. If Quincus determines in its reasonable discretion that the dispute is without merit, Customer shall immediately pay the disputed portion of the invoice and all other amounts required under Section 4.3. If Quincus determines in its reasonable discretion that the dispute is valid, the parties shall, acting in good faith, use commercially reasonable efforts to resolve the dispute within five days after Quincus informs Customer of such determination. Customer shall pay the amount mutually agreed to be due on any disputed invoice or portion thereof within five days after resolution of the dispute. After the Initial Term (as defined below), Subscription Fees may increase once annually at a rate of 5% plus the published percentage increase (provided that such increase is greater than 0%) in the employment cost index over the immediately preceding annual period.
4.3 Overdue Payments. All amounts payable under this Agreement by Customer shall be paid in full without set-off, deduction or other withholding of any amount. Interest shall accrue on all payments received after the due date at the rate of the lesser of 1.5% per month (18% per annum) and the highest rate allowable by applicable law. Quincus may suspend Customer’s access to and use of any and all Licensed Materials and Services if Customer fails to pay any Fees within 10 days after the due date. Any such suspension does not relieve Customer from paying past due Fees plus interest or of any other accrued obligations hereunder.
4.4 Taxes. The Fees do not include federal, state or local sales, use, property, excise, withholding services, goods and services tax (GST), value-added tax (VAT) or other taxes or assessments levied in connection with this Agreement or any Licensed Materials or Services. Customer shall remit such taxes directly to the applicable taxing authorities and will gross up any amounts subject to withholding by Customer. Any amounts paid or payable by Quincus in respect of any such taxes or the Fees invoiced in accordance with this Agreement (excluding only taxes on Quincus’s net income) shall be included on invoices and paid by Customer to Quincus.
5.1 Confidential Information. “Confidential Information” of a party means all nonpublic information communicated by or on behalf of that party to the other party, whether before or after the Agreement Effective Date, which is marked as “Confidential” or which the receiving party should reasonably understand to be confidential or proprietary given the nature of the information or the circumstances of its disclosure, including without limitation the terms and conditions of this Agreement and the Quincus Materials and Services. Notwithstanding the foregoing, “Confidential Information” shall not include information which is: (a) already known by the receiving party prior to its disclosure by the disclosing party; (b) publicly known or that becomes publicly known other than as a result of a breach by the receiving party of this Agreement; (c) rightfully received from a third party without an obligation of confidentiality; or (d) independently developed without use of or reference to the disclosing party’s Confidential Information.
5.2 Disclosure and Use. Neither party will disclose the Confidential Information of the other party to any person, other than the employees and contractors of the receiving party who need to know such information to carry out the purposes of this Agreement, provided that any such contractor of Customer or any of its Affiliates may not (without Quincus’s prior written consent) be a person or entity that develops, markets, licenses or sells supply chain management software or any related services. In addition, neither party will use the Confidential Information of the other party except for purposes of this Agreement. Each party will be responsible for any prohibited disclosure or use of the other party’s Confidential Information by the receiving party’s employees and contractors. Each party shall protect the other party’s Confidential Information using not less than the same degree of care with which it treats its own Confidential Information of like nature, but at all times shall use at least reasonable care.
5.3 Disclosure Exceptions. A party may disclose the other party’s Confidential Information to the extent required to comply with a law or court order, provided that the receiving party promptly notifies the disclosing party of the requirement to disclose such information (if permitted by applicable law), reasonably cooperates with the disclosing party (at its cost) in any attempt by the disclosing party to obtain an injunction preventing such disclosure or assurances that confidential treatment will be afforded any Confidential Information so disclosed, and discloses only that portion of Confidential Information that is necessary to comply with such law or court order.
5.4 Equitable Remedies. Each party acknowledges that any threatened or actual breach of this Section 5 shall constitute immediate, irreparable harm to the disclosing party for which equitable remedies may be awarded by a court of competent jurisdiction.
6.1 Customer Indemnity. Customer shall indemnify, defend and hold harmless Quincus, its affiliates, and the respective officers, directors, employees, agents, contractors, suppliers and owners of each of the foregoing from and against any and all loss, liability, costs, damages and expenses, including attorneys’ fees and other costs of legal defense (collectively, “Losses”), arising out of any third-party claim to the extent based on (a) breach by Customer of Section 2.1(e), (b) any Excluded Claim (as defined below), (c) any Customer Data or Third-Party Materials (other than Third-Party Materials provided by Quincus as incorporated into the Licensed Materials), (d) personal injury, death or property damage to the extent attributable to Customer or any of its Affiliates or Users, or (e) Customer’s or any of its Affiliates’ or Users’ gross negligence or willful misconduct.
6.2 Quincus Indemnity. Quincus shall indemnify, defend and hold harmless Customer, its Affiliates, and the respective officers, directors, employees, agents, contractors and owners of each of the foregoing from and against any and all Losses arising out of any third-party claim to the extent based on (a) breach by Quincus of Section 2.1(e), (b) personal injury, death or property damage to the extent attributable to Quincus or any of its affiliates, or (c) Quincus’s or any of its affiliates’ gross negligence or willful misconduct.
6.3 Infringement Indemnity.
a) Quincus shall indemnify, defend and hold harmless Customer, its Affiliates, and the respective officers, directors, employees, agents, contractors and owners of each of the foregoing from and against any and all Losses arising out of any third-party claim to the extent based on infringement or misappropriation of any U.S. patent (or any patent issued in any jurisdiction where the applicable Product is used by Customer or its Affiliates in accordance with this Agreement) or any non-patent intellectual property or proprietary right of any third party by any Product as provided by Quincus to Customer.
b) If such a claim has been made, or in Quincus’s opinion is likely to be made, Customer agrees to permit Quincus, at its option and expense, to (i) procure for Customer the right to continue using the allegedly infringing materials, (ii) replace or modify such infringing materials so that they become non-infringing, or (iii) terminate Customer’s use of such infringing materials, in which case Customer will cease using the infringing materials.
c) Notwithstanding the foregoing, Quincus has no liability for any such claim to the extent arising from (i) the combination or use of any Licensed Materials with any materials not supplied by Quincus, (ii) the alteration or modification of any Licensed Materials by any party other than Quincus, (iii) Customer’s use of any Licensed Materials after Quincus has informed Customer of modifications or changes in such Licensed Materials intended or required to avoid a claim (provided Quincus offered such modifications or changes without charges not otherwise required pursuant to this Agreement), (iv) Quincus’s compliance with Customer’s designs, specifications or instructions, or (v) breach of this Agreement (including any use of any Licensed Materials in a manner not authorized by this Agreement) (collectively, “Excluded Claims”).
d) THIS SECTION 6.3 SETS FORTH QUINCUS’S ENTIRE OBLIGATION AND LIABILITY, AND CUSTOMER’S SOLE REMEDY, IN CONNECTION WITH ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION BY THE LICENSED MATERIALS.
6.4 Exercise of Indemnity Rights. The indemnifying party’s obligations to defend a claim and indemnify the other party and its indemnitees (the “Indemnitees”) are contingent upon: (a) such party notifying the indemnifying party promptly in writing of the claim and any threat thereof, (b) the Indemnitees giving the indemnifying party exclusive authority for the conduct of the defense and settlement of the claim and any subsequent appeal, and (c) the Indemnitees giving the indemnifying party all information and assistance (at its cost) reasonably requested by the indemnifying party in connection with the conduct of the defense and settlement of the claim and any subsequent appeal. The indemnifying party may not agree to any settlement without the Indemnitees’ prior written consent (not to be unreasonably withheld, conditioned or delayed) if such settlement (i) admits fault of any Indemnitee or fails to release all Indemnitees from all responsibility and liability with respect to the claim or (ii) imposes any non-de minimis obligation on any Indemnitee (other than payments with respect to which the Indemnitees are indemnified hereunder and non-use of infringing materials).
7. Waivers; Limitations
7.1 WAIVER OF DAMAGES. EXCEPT FOR (A) EACH PARTY’S GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, (B) BREACHES OF SECTION 1.3, (C) INDEMNIFICATION AND DEFENSE OBLIGATIONS AND LIABILITIES UNDER SECTIONS 1.4 OR 6, AND (E) EXCLUSIONS THAT ARE VOID UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, RELIANCE, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR ANY LOST PROFITS, DATA, REVENUE, OR PRODUCTION, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF. THE LIMITATIONS PROVIDED IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL QUINCUS BE LIABLE TO CUSTOMER FOR ANY DEFECTS IN, THE FAILURE OF, OR THE INCOMPATIBILITY OF THE LICENSED MATERIALS OR SERVICES WITH ANY SOFTWARE, HARDWARE, OR OTHER PRODUCTS OR SERVICES PROVIDED BY A THIRD PARTY.
7.2 DAMAGES CAP. EXCEPT FOR (A) EACH PARTY’S GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, (B) BREACHES OF SECTION 1.3, (C) INDEMNIFICATION AND DEFENSE OBLIGATIONS AND LIABILITIES UNDER SECTIONS 1.4 OR 6, (D) CUSTOMER’S PAYMENT OBLIGATIONS, AND (E) EXCLUSIONS THAT ARE VOID UNDER APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY HERETO EXCEED THE FEES PAID BY CUSTOMER TO QUINCUS DURING THE THREE-MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE. THE LIMITATIONS PROVIDED IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
8. Term and Termination; Suspension
8.1 Term. The term of this Agreement commences on the Agreement Effective Date and continues for the initial term specified in the Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive terms, each of which shall be equivalent to the Initial Term (all such terms and the Initial Term, the “Term”), unless either party notifies the other party of non-renewal at prior to the end of the then-current term.
8.2 Termination for Cause. Either party may terminate this Agreement or any or all affected SOWs or Subscription Services (or any Services provided under any SOW) by giving written notice to the other party or, in the case of Customer, affirmation and submission by the Customer of a request for desired cancellation via the billing portal provided by Quincus, (a) in the event the other party is in material breach of this Agreement and fails to cure such breach within 30 days of receipt of written notice thereof from the non-breaching party, or (b) 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 that is not dismissed within 30 days after it is filed or commenced, as applicable.
8.3 Effect of Termination. Upon termination of this Agreement or any SOWs or Subscription Services, (a) Customer, its Affiliates and all Users shall immediately cease using the relevant Licensed Materials and Services, (b) Customer shall promptly destroy all copies of the relevant Licensed Materials and certify to Quincus in writing that such destruction has occurred, (c) each party shall return all Confidential Information of the other party to such party (except to the extent the party needs to retain such Confidential Information for performance of any other SOW or is otherwise expressly permitted to continue using such Confidential Information), and (d) Customer shall immediately pay Quincus all unpaid balances for Licensed Materials and Services provided and expenses incurred prior to such termination. Termination of this Agreement or any SOW shall not entitle Customer to a refund of any Fees. Termination of this Agreement shall result in automatic termination of all SOWs. Customer’s payment obligations and Sections 1.2(a)(iv), 1.2(b), 1.2(c), 1.3, 1.4, 1.5, 1.10, 2.2, 3.1, 3.2, 3.3, 3.4, 3.5, 4, 5, 6, 7, 8.3 and 9 of these General Terms, and any other terms and conditions of this Agreement which by their nature reasonably should survive termination of this Agreement, shall survive such termination.
8.4 Suspension. Without prejudice to any of its other remedies under this Agreement or at law, Quincus may immediately suspend Customer’s Subscription and Customer’s or any of its Affiliates’ or Users’ access to and use of any and all Licensed Materials and Services in the event of any breach by Customer of Sections 1.3, 1.4 or 4 of these General Terms, and such suspension shall not be deemed a violation of this Agreement or relieve Customer of its obligation to pay Fees.
9. General Provisions
9.1 Feedback. Customer agrees that all feedback, suggestions, recommendations and other similar comments pertaining to the Quincus Materials or Services (collectively, “Feedback”) provided by Customer or any Affiliate or User is the sole property of Quincus and is not Customer’s Confidential Information. Quincus may use such Feedback and any know-how, experience or skills that it generates therefrom for any purpose.
9.2 Use of Subcontractors. Quincus may use subcontractors to perform its obligations under this Agreement provided that Quincus remains responsible for its obligations hereunder.
9.3 Non-Solicitation. Customer agrees that, during the Term and for one year thereafter, it shall not solicit, offer employment to, employ, engage as an independent contractor, or otherwise obtain the services of any person employed or engaged as a full-time independent contractor then or within the preceding one year by Quincus. It shall not be deemed a breach of this section for Customer to hire or engage such a person who independently responds to a non-targeted advertisement or otherwise voluntarily applies to work for Customer, provided that Customer did not take any action, directly or indirectly, to intentionally solicit or recruit such person prior to such person answering such advertisement or voluntarily applying.
9.4 Relationship of the Parties. Quincus enters into this Agreement as an independent contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.5 No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
9.6 Force Majeure. Excluding Customer’s payment obligations hereunder, each party’s failure to perform under this Agreement shall be excused to the extent an act of God, act of government, civil commotion, earthquake, epidemic, pandemic, explosion, fire, flood, labor strike, national emergency, quarantine, riot, terrorist attack, war, strikes, or any other occurrence or emergency beyond the party’s control makes such performance (in whole or in part) impossible, illegal or commercially impracticable. If the period of non-performance continues for three (3) months, the party not affected may terminate any or all affected Products and Services or this Agreement by giving fifteen (15) days’ written notice to the affected party.
9.7 Audit. From time to time during the Term and for two years thereafter, with reasonable prior notice to Customer, Quincus or its authorized designees may, either remotely at any time or on Customer’s or any of its Affiliates’ premises during normal business hours, audit Customer’s and its Affiliate’s respective records, servers and other computer hardware, systems and materials as reasonably necessary to verify that Customer, its Affiliates and Users are using the Licensed Materials in compliance with this Agreement. Customer shall provide Quincus with the access needed to perform any such audit and otherwise reasonably cooperate with Quincus in its performance thereof. In the event any such audit reveals that Customer or any Affiliate or User is using (or has at any time used) any Licensed Materials contrary to the terms and conditions of this Agreement, Customer shall promptly pay to Quincus (a) additional Fees consistent with Customer’s actual historic and prospective use of such Licensed Materials in accordance with Quincus’s then-current pricing, and (b) if such additional Fees exceed five percent of the total Fees paid to Quincus for Licensed Materials for the audited period, the reasonable costs incurred by Quincus in performing the audit. Such assessment of additional Fees and costs will be without prejudice to any other remedies Quincus may have for breach of this Agreement. If Customer does not promptly pay such additional Fees, Quincus may immediately terminate Customer’s license to the Licensed Materials.
9.8 Waiver and Cumulative Remedies. The waiver by either party of any right provided under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement. The remedies provided herein are in addition to, and not exclusive of, any other remedies a party may have at law or in equity.
9.9 Severability. In the event that one or more terms of this Agreement becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall to the extent of such illegality or unenforceability be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.
9.10 Assignment. Customer may not assign this Agreement (including without limitation in connection with a change of control of Customer) in whole or in part without the prior written consent of Quincus. Quincus may assign this Agreement to any of its affiliates or in connection with a change of control (whether resulting from merger, consolidation, stock transfer, asset sale or otherwise) without the prior written consent of Customer. Any assignment in contravention of this provision shall be void. This Agreement shall be binding upon the successors and permitted assigns of the parties.
9.11 Publicity. Customer hereby grants to Quincus a non-exclusive, transferable (solely in accordance with Section 9.10), sublicensable (solely to Quincus’s affiliates and contractors), royalty-free, worldwide license to use and display Customer’s name, trademarks, trade names, service marks, symbols, signs, slogans, logos or other markings or names owned by or associated with Customer in press releases, public announcements, customer lists, website listings of customers, presentations, marketing materials, case studies and blog posts and in connection with other marketing-related activities.
9.12 Governing Law; Venue; Waiver of Jury Trial. If this Agreement is entered into by Quincus Pte. Ltd., (a) this Agreement shall be governed by the laws of the Republic of Singapore without giving effect to the principles of conflicts of law of any jurisdiction, (b) the parties hereto irrevocably agree that the courts of Singapore shall have exclusive jurisdiction to settle all claims and disputes in connection with this Agreement, and (c) a person who is not a party to this Agreement shall not have the benefit of, and shall not be permitted to enforce, any of its provisions under the Contracts (Rights of Third Parties) Act, Chapter 53B of the Singapore Statutes. If this Agreement is entered into by Quincus Canada Ltd., this Agreement shall be governed by the laws of the state of New York without giving effect to the principles of conflicts of law of any jurisdiction, and the parties hereto irrevocably agree that the state or federal courts located in New York County, New York shall have exclusive jurisdiction to settle all claims and disputes in connection with this Agreement. If this Agreement is entered into by Quincus Limited, this Agreement shall be governed by the laws of England and Wales without giving effect to the principles of conflicts of law of any jurisdiction (in which case all references to “reasonable efforts” herein shall be deemed to mean “reasonable endeavours”), and the parties hereto irrevocably agree that courts located in London, England shall have exclusive jurisdiction to settle all claims and disputes in connection with this Agreement. Notwithstanding the foregoing, either party may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim, equitable or provisional relief that is necessary to protect the intellectual property rights or other rights of such party. This Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods, and the parties expressly disclaim the application thereof. EACH PARTY 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.
9.13 Notices. Notices hereunder must be in writing and given by certified, registered or overnight mail, postage prepaid and return receipt requested, to the receiving party at the address set forth in the Order Form (or such other address as a party may designate to the other party in a notice given in accordance with this section).
9.14 Entire Agreement; Modification; Conflict. This Agreement contains the complete and exclusive statement of this Agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, proposals, negotiations, representations or warranties of any kind, whether oral or written, with respect to such subject matter. Each party acknowledges that in entering into this Agreement, it has not relied on any previous or implied representation, warranty, agreement or statement not expressly set out in this Agreement and it will have no right or remedy arising out of any such representation, warranty, agreement or statement. 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 this Agreement and the Order Form, this Agreement shall control except to the extent the Order Form expressly supersedes this Agreement by acknowledgement of the conflict and reference to the superseded provision.
I. Maintenance and Support Services
1. Scheduled Maintenance Services
1.1 Quincus shall provide Product maintenance from time to time as determined by Quincus. Quincus shall use reasonable efforts to inform Customer in advance of such maintenance. If Quincus reasonably expects the availability of the Products to be affected, it shall inform Customer of scheduled maintenance, and if such maintenance is likely to have a material negative impact on the Products, Quincus shall use commercially reasonable efforts to inform Customer thereof at least ten business days in advance.
1.2 Quincus shall use commercially reasonable efforts to provide all scheduled maintenance outside Business Hours. “Business Hours” means Quincus’s business hours, as determined from time to time by Quincus.
2. Updates and Upgrades
2.1 Maintenance includes implementation of widely-released fixes for Product-specific vulnerabilities to ensure integrity, authentication and availability of the Products, as determined by Quincus and without any prior notice to or consent from Customer.
2.2 Maintenance includes implementation of hotfixes, patches and minor version updates (collectively, “Updates”) to the Products and supporting infrastructure as follows:
(a) third-party security Updates shall be implemented within a commercially reasonable time following release, provided that Quincus may, acting reasonably, decide not to apply any particular third-party security Update;
(b) Quincus’s security Updates shall be implemented within a commercially reasonable time following the identification of the relevant security risk and the completion of the testing of the relevant Update; and
(c) other Updates shall be implemented as determined by Quincus or as agreed in writing by the parties from time to time.
2.3 Maintenance includes implementation of major version upgrades of Products and supporting infrastructure (collectively, “Upgrades”) in accordance with Quincus’s development roadmaps as determined by Quincus and without prior notice to or consent from Customer. Quincus expects to provide new Product versions at least once every 18 months.
2.4 Updates and Upgrades may result in changes to certain Product features and functionality, including without limitation the introduction of features in “Beta” for testing and evaluation by Quincus.
3.1 Quincus shall make available to Customer a helpdesk in accordance with the provisions of this Section 3.
3.2 Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving support Services. Customer may not use the helpdesk for any other purpose. All requests for support Services (including for error response and resolution under Section 4 below) must be made via the helpdesk.
3.3 The helpdesk is accessible by email at firstname.lastname@example.org, or by such other means as may be provided by Quincus from time to time.
3.4 Quincus shall ensure that the helpdesk is operational and adequately staffed during Business Hours.
4. Response and resolution
4.1 Issues raised by Customer via the helpdesk in accordance with Section 3 shall be categorized by Quincus in its reasonable discretion. The categories are:
P1 – Critical / Loss of Service
The Product is not functioning at all in a production environment or the server crashes or otherwise materially fails, and there is no workaround available.
P2 – Major
Non-conformity such that one of the major functions or features of the Product is not functioning at all. The incident severely restricts the usability of the Product in a production environment, but the application itself is running. There is no workaround available.
P3 – Minor
All errors not classified as P1 or P2, including that the Product is running with a minor flaw and the usability of the Product is not affected or only moderately inconvenienced, or the impact of the problem affects few of the Users.
4.2 Quincus shall use reasonable efforts to respond and resolve requests for support Services made within Business Hours in accordance with the following time periods:
|P1 – Critical||24 hours||24 hours|
|P2 – Major||24 hours||48 hours|
|P3 – Minor||72 hours||168 hours|
Response and Resolution times shall be calculated from Quincus’s receipt of Customer’s request for support Services.
4.3 Quincus shall use commercially reasonable efforts to ensure that its response to a request for support Services includes the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request. Quincus shall use commercially reasonable efforts to correct the error or to provide a suitable workaround solution. However, Quincus does not warrant that it is able to correct the error in any particular case. Quincus shall perform the actual error correction in accordance with methods of its own determination. Quincus shall have no responsibility or liability with respect to any error or nonconformity that cannot be verified and reproduced by Quincus.
5. Provision of Support Services. The support Services shall be provided remotely, unless the parties agree otherwise in writing.
6. Limitations on Support Services
6.1 If the total hours spent by Quincus personnel to perform the support Services during any calendar month exceed its reasonably expected endeavours, as may be determined by Quincus at its sole discretion, then Quincus will cease to have any obligation to provide support Services to the Customer during the remainder of that calendar month.
6.2 Quincus shall have no obligation to provide maintenance or support Services in respect of any issue caused wholly or in part by any Exception (as defined below).
7. Disaster Testing & Business Continuity. Quincus will test its disaster recovery plan annually. The testing includes a recovery and restoration exercise to an alternate site which includes the full scope of the application dependencies. Quincus shall maintain backups of Customer Data and disaster recovery and business continuity mechanisms designed to enable storage and retrieval of Customer Data in accordance with generally-accepted industry standards.
II. Hosting Services
1. Quincus shall use reasonable efforts to ensure that the uptime for each Product is at least 99% during each calendar month (“Uptime Guarantee”). Uptime is calculated as follows and expressed as a percentage: (a) the total number of minutes in the applicable month minus all downtime caused by Exceptions minus all unexcused downtime where the applicable Product is unavailable, divided by (b) the total number of minutes in the applicable month minus all downtime caused by Exceptions.
Downtime caused, directly or indirectly, by any of the following (collectively, “Exceptions”) shall not be considered when calculating whether Quincus has met the Uptime Guarantee:
(a) a force majeure event or any other circumstances beyond Quincus’s reasonable control;
(b) a fault or failure of Quincus’s hosting infrastructure services provider or other third party (including telecommunication company service disruptions and third-party software defects), unless such fault or failure constitutes an actionable breach by Quincus of the contract between Quincus and that third party;
(d) delays, losses, outages, errors or other performance problems caused by or resulting from any fault, failure or incompatibility of the Customer’s computer systems or networks or non-compliance by the Customer with the Documentation;
(e) any problem resulting from the misuse of or unauthorized alteration or damage to the Products or related infrastructure attributable to Customer (or any Affiliate or User) or any use of the Products that deviates from any operating procedures established in the applicable Documentation;
(f) failures, outages or inaccessibility of any devices, computers, networks or systems of Customer or any Affiliate or User;
(g) Customer’s failure to timely respond to Quincus in connection with the resolution of a reported issue or Customer’s error in reporting any downtime or other performance issue that may result in a Service Credit;
(h) Customer’s or any Affiliate’s or User’s negligence;
(i) a breach by the Customer of this Agreement, or Customer’s failure to perform any of its obligations in Section IV below; or
(j) scheduled maintenance or other maintenance agreed between the parties.
III. Customer Obligations
1. Customer shall provide Quincus with reasonable assistance in conjunction with the delivery of the Services described in this Schedule. Without limiting the generality of the foregoing, Customer shall make necessary materials available as requested by Vendor, such as system messages, copies of error messages and other documentation associated with errors.
2. Customer is responsible for:
- maintenance of Customer’s own computer systems and networks and configurations that are outside the scope of the Services;
- informing Quincus of any changes in the Customer’s systems that the Customer plans to make, including anticipated changes, if the changes may affect the functionality or interoperability of the Licensed Materials or the interfaces between the Licensed Materials and the Customer’s system;
- granting reasonable access (remote or on-site) rights to Customer premises or systems to Quincus employees or other Quincus-designated personnel; and
- informing Quincus of any problems or errors with the Licensed Materials that Customer encounters.