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QPOINT SUBSCRIPTION AGREEMENT

Last Updated: November 10, 2023

This Subscription Agreement is entered into between the customer identified on the applicable Order Form (“Customer”) and QPoint, Inc. (“QPoint”). QPoint and Customer agree that the following terms and conditions will apply to the Software and Services provided under this Agreement. By signing an Order Form or accessing any Software or other content provided by QPoint through the Services, Customer agrees to be bound by the following terms, as updated from time to time (together with the Order Form, this “Agreement”).

  1. BACKGROUND. Capitalized terms used in this Agreement shall have the definition set forth in Section 12 (Definitions) or as otherwise defined within the Agreement. QPoint has developed certain Software, which it provides as part of its Services. Customer wishes to utilize the Services, and QPoint desires to make the Services available to Customer, subject to the following terms and conditions.
  2. LICENSE GRANT
    1. License. Subject to the terms and conditions of this Agreement, QPoint grants to Customer a non-exclusive, non-transferable (except as permitted by Section 11.5), non-sublicensable right and license during the Term to access and use the Services solely for Customer’s internal business purposes, subject further to the limitations in Section 2.2. QPoint may make any changes to the Services, in whole or part, that it deems necessary or useful in its sole discretion.
    2. Limitations. Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) access the Software or Documentation or use the Services, other than by Authorized Users; (b) copy, modify, adapt, alter, or translate the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation or provide access to the Services to any third party (except as permitted by Section 11.5); (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; or (e) access the Software or Documentation for purposes of building a competing product or service. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, or any part thereof, including any right to obtain possession of any source code of the Software.
  3. INTELLECTUAL PROPERTY
    1. Ownership. As between the Parties, the Services, all other materials provided by QPoint hereunder, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of QPoint. All rights in and to the Services not expressly granted to Customer in this Agreement are reserved by QPoint.
    2. Open Source Software. Certain items of software that may be provided to Customer with the Software are subject to “open source” or “free software” licenses. Such licenses are not subject to the terms and conditions of Section 9 (Indemnification) or Section 2.1 (License) but are instead licensed under the terms of the end user license that accompanies such software.
    3. Feedback. If Customer sends or transmits to QPoint any Feedback, Customer hereby assigns to QPoint, on behalf of itself and its employees, contractors, and agents, all right, title, and interest in any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, without any requirement of reporting, attribution or compensation.
  4. FEES. In consideration for the license granted to Customer and the Services performed by QPoint under this Agreement, Customer will pay to QPoint the then-current license fee for the Services. Any fee increases take effect at the subsequent renewal. All fees for Services are due and payable to QPoint on the cadence specified in the Order Form and are non-refundable. If any amounts remain unpaid when due, QPoint may charge interest at the rate of 1.5% per month, or the maximum legal rate if less, and may suspend provision of the Services until all amounts due are paid in full. If a Customer wishes to increase its license capacity during a subscription term, it may execute an additional or amended Order Form and remit the corresponding increase in fees. Each Party shall be responsible for any taxes imposed on such Party under applicable law in connection with the transactions contemplated by this Agreement.
  5. CUSTOMER CONTENT AND RESPONSIBILITIES
    1. Authorized Users’ Access to Services. Customer may permit any Authorized Users to access and use the Services as contemplated by this Agreement, and is responsible for all use of the Services by such Authorized Users.  User IDs and other access credentials cannot be shared or used by more than one Authorized User at a time. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall notify QPoint promptly of any such unauthorized use known to Customer. Customer is responsible for the security of all passwords and other access protocols required to access the Services.
    2. Responsibility for Customer Content. As between the parties, Customer is solely responsible for, and QPoint bears no responsibility for: (a) the accuracy, quality, legality, and appropriateness of Customer Content; (b) determining whether the Service and the information generated thereby are accurate and sufficient for Customer’s purposes; (c) updating Customer Content as needed, and all changes and deletions to the Customer Content; and (d) any output or other results obtained by Customer or generated by the Service as a result of QPoint’s or the Service’s use of or reliance on Customer Content.
    3. Customer Warranty. Customer represents, warrants and covenants that Customer shall at all times comply with all laws, rules and regulations applicable to its use of the Services hereunder, including all applicable federal laws, regulations, and rules that prohibit or restrict the export or re-export of the Services or any Customer Content outside the US.
    4. Customer Equipment. Customer is solely responsible for procuring and maintaining the network connections, hardware, and all other equipment required for Customer’s operation of the Service (collectively “Equipment”). QPoint is not responsible for interruptions, service or performance failures, delays, or other problems in connection with Customer’s use of any Equipment.
  6. WARRANTIES AND DISCLAIMERS
    1. Limited Warranty. Without limiting Section 5.2, QPoint warrants to Customer that the Software will operate free from material Errors during the Term. Provided that Customer notifies QPoint of any breach of the foregoing warranty during the Term, QPoint shall, as Customer’s sole and exclusive remedy for such breach, use commercially reasonable efforts to correct all material Errors reported by Customer.
    2. Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” AND QPOINT MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE OF THE SERVICES OR ANY OTHER PRODUCTS OR SERVICES THAT QPOINT PROVIDES TO CUSTOMER. QPOINT DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
  7. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND ASSIGNS SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE; DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH SUCH PARTY’S PERFORMANCE HEREUNDER; LOSS OF GOODWILL OR REPUTATION; OR THE USE, MISUSE, OR INABILITY TO USE THE SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE MAXIMUM LIABILITY OF EACH PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO QPOINT DURING THE 12 MONTHS PRECEDING THE OCCURRENCE GIVING RISE TO SUCH LIABILITY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.  
  8. CONFIDENTIALITY
    1. Confidential Information. During the Term, each Party (the “Disclosing Party”) may provide the other Party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information, whether orally or in written, electronic, or other form, and whether or not marked or designated as confidential (collectively, “Confidential Information”). The Software, Documentation, and all enhancements and improvements thereto are the Confidential Information of QPoint. The Customer Content is the Confidential Information of Customer.  
    2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees and contractors who have a need to know, who are bound by confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request (including upon expiration or termination of this Agreement), the Receiving Party will promptly return to the Disclosing Party or destroy all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement (except that Confidential Information contained in system-backup media need not be returned or destroyed so long as the backup media are maintained in confidence and are not readily accessible to users), and, upon the Disclosing Party’s request, the Receiving Party shall provide to the Disclosing Party a certification of compliance with this sentence.
    3. Exceptions. The confidentiality obligations set forth in this Section 8 will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
  9. INDEMNIFICATION; CORRECTIVE ACTIONS. QPoint will defend at its expense any suit brought against Customer, and will pay any settlement QPoint makes or approves, or any damages finally awarded in such suit, to the extent such suit is based on a claim by any third party alleging that the Services (or portion thereof) misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright registered or United States patent issued as of the Effective Date. QPoint’s obligations set forth above are expressly conditioned upon each of the foregoing: (a) Customer shall promptly notify QPoint of any threatened or actual claim or suit; (b) QPoint shall have sole control of the defense or settlement of any claim or suit; and (c) Customer shall cooperate with QPoint to facilitate the settlement or defense of any claim or suit. If any portion of the Services becomes, or in QPoint’s opinion is likely to become, the subject of a claim of infringement, QPoint may, at QPoint’s option: (i) procure for Customer the right to continue using the Services; (ii) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (iii) modify the Services so that it becomes non-infringing; or (iv) terminate this Agreement, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, QPoint shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied by QPoint; or (y) any modification of the Services by any person other than QPoint or its authorized agents. This section states the sole and exclusive remedy of Customer and the entire liability of QPoint, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
  10. TERM AND TERMINATION
    1. Term. This Agreement commences on the Effective Date and remains in effect for the subscription term set forth in the Order Form, unless earlier terminated as set forth below. The term of this Agreement, and Customer’s subscription to the Services, automatically renews for consecutive one-year terms unless either Party provides notice to the other of its intention not to renew at least 30 days prior to the expiration of the then-current term (each renewal term, together with the initial term, the “Term”).  
    2. Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement, and such breach remains uncured more than 30 days after receipt of notice of such breach. Notwithstanding the foregoing, QPoint may suspend or terminate Customer’s access to the Services or terminate this Agreement, in each case effective immediately on notice to Customer if Customer breaches any of its obligations under Section 2.2.
    3. Effect of Termination. Upon termination or expiration of this Agreement for any reason, all rights, licenses, and obligations of both Parties shall immediately terminate unless otherwise specified herein. Sections 3 (Intellectual Property), 6.2 (Disclaimer), 7 (Limitation of Liability), 8 (Confidentiality), 9 (Indemnification; Corrective Actions), 10.3 (Effect of Termination), 11 (Miscellaneous) and 12 (Definitions) will survive expiration or termination of this Agreement for any reason.
  11. MISCELLANEOUS
    1. Governing Law and Venue; Waiver of Jury Trial. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    2. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Customer agrees that Section 7 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 6.1 (Limited Warranty).
    3. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    4. Remedies. Except as provided in Sections 6.1 (Limited Warranty) and 9 (Indemnification; Corrective Actions), the Parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that any actual or threatened breach of Sections 3 (Intellectual Property) or 8 (Confidentiality) or any other breach by Customer of its obligations with respect to Intellectual Property Rights of QPoint will constitute immediate, irreparable harm to QPoint for which monetary damages would be an inadequate remedy. In such case, QPoint will be entitled to immediate injunctive relief without the requirement of posting bond.
    5. No Assignment. Neither Party shall assign or transfer this Agreement, or its rights or obligations herein, without obtaining the prior consent of the other Party, and any attempted assignment or transfer in violation of the foregoing will be void; provided, however, that either Party may assign this Agreement to its affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets without consent of the other Party. The terms of this Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
    6. Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, public health emergency, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.
    7. Independent Contractors. Customer’s relationship to QPoint is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of QPoint.
    8. Notices. Each Party must deliver all notices, consents or other communications required or permitted under this Agreement to the other Party in writing by email at the email address listed in the applicable Order Form. Notice will be effective on the date sent by email with confirmation of transmission, if sent during normal business hours of the recipient, and on the next business day, if sent after normal business hours of the recipient. Each Party may change its address for receipt of notice by giving notice of such change to the other Party in accordance with this section.  
    9. Miscellaneous. This Agreement is the final, complete, and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matter. No other agreement for the same subject matter, including any preprinted terms on any Customer communication or any posting of terms and conditions on QPoint’s or Customer’s website, shall alter, modify, supplement or amend the terms and provisions set forth in this Agreement. QPoint may modify this Agreement (but not the terms of any Order Form) from time to time. If QPoint makes material changes, QPoint will provide Customer with notice and the opportunity to review the changes before they become effective. Customer’s continued use of the Services after QPoint publishes or sends a notice about changes to this Agreement means that Customer is consenting to the updated terms as of their effective date. No third party is a beneficiary of this Agreement. For purposes of this Agreement, the words “including” and correlative terms mean inclusion without limitation and the word “or” is not exclusive. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
  12. DEFINITIONS. Capitalized terms shall have the meanings set forth in this Section 12, or in the section where they are first used.
    1. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by QPoint in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision, operation and output of the Services and for other research and development purposes.
    2. “Authorized User” means any employee of Customer or such other person or entity authorized by Customer to access the Services.
    3. “Customer Content” means any information, data, text, photographs, messages, or other materials that Customer or any Authorized Users submit, post, or otherwise transmit to the Services, but excluding, for clarity, any Aggregated Statistics.
    4. “Documentation” means the technical materials provided by QPoint to Customer in hard copy or electronic form describing the use and operation of the Software.
    5. “Error” means a failure of the Software to substantially conform to the Documentation.
    6. “Feedback” means communications or materials provided orally, by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like.
    7. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, software, and moral rights; (b) trademark or service mark rights, together with all goodwill related to the foregoing; (c) trade secret and know-how rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary and intellectual property rights of every kind and nature; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in any jurisdiction throughout the world.
    8. “Order Form” means a document signed by both Parties identifying Services to be made available by QPoint pursuant to this Agreement.
    9. “Services” means access to the Software and Documentation as provided hereunder and any other services ordered by Customer through an Order Form.
    10. “Software” means QPoint’s software platform and any associated user interfaces and related technology that QPoint makes available pursuant to an Order Form.