DQLabs End User License and Services Agreement

DQLabs End User License and Services Agreement

This DQLabs End User License and Services Agreement (“Agreement”) is made between DQLabs, Inc. (“DQLabs,” “We,” “Us,” or “Our”) and [Customer Name] (“Customer,” “You,” or “Your”) as of [Effective Date]. By executing an Order that references this Agreement, the Customer agrees to these terms. The person signing represents they have authority to bind Customer.

1. Scope of Use

Definitions:

• “Adoption Services” means Our packaged services to assist Customers with the adoption and use of the Products.
• “Cloud Services” means Our offerings made available to Customers on demand via the Internet.
• “Documentation” means the user documentation provided with the Products.
• “Installation Services” means Our packaged professional services for installation of the Products.
• “Order” means Our order form for Products, Adoption Services, and Installation Services.
• “Products” means DQLabs-branded offerings, which may include Software and/or Cloud Services.
• “Software” means DQLabs-branded computer programs that may be installed on Customer’s or a third party’s equipment.
• “User” means an individual authorized by Customer to use the Cloud Services or Software.

1.1 Products and Services

Customer may acquire Products, Adoption Services, and Installation Services through an Order. Each Order is a separate agreement. We will honor Orders from Customer and its Affiliates. “Affiliate” means an entity controlling, controlled by, or under common control with a party, with over 50% ownership or voting power.

1.2 Software License

If Customer orders Software for on-premises deployment, DQLabs grants Customer and its Affiliates a non-exclusive, non-transferable, non-sublicensable license to use the Software in object code format during the Order Term. The number of Software copies installed by Customer must correspond to the licenses purchased. Customer may make a reasonable number of backup copies, but will not otherwise copy the Software. All titles, trademarks, and copyright and restricted notices must be reproduced on any copies.

1.3 Cloud Services

If Customer orders Cloud Services, DQLabs grants Customer and its Affiliates non-exclusive, non-transferable, worldwide access to Users to use the Cloud Services during the Order Term, subject to the terms of this Agreement. Customer will protect User IDs and passwords, notify Us of unauthorized use, and report unauthorized use. Customer will not: (a) allow more Users than permitted in the Order; (b) send or store unlawful or malicious material; (c) damage, disable, overburden, impair, interfere with, or disrupt the Cloud Service; (d) attempt to gain unauthorized access; (e) exceed any applicable usage or storage capacity limit; or (f) make the Cloud Services available to any unlicensed users.

1.4 Usage Limitations

Products are for Customer and its Affiliates’ internal data processing needs only. Customer will not: (i) make Products available to unauthorized third parties; (ii) use Products for outsourcing or service bureau purposes; (iii) rent or lease Products; (iv) use Products for any illegal purpose; (v) distribute, sell, sublicense, or transfer Products or any portion; or (vi) use the Products except as allowed herein. Third-party software provided with the Products cannot be used independently. Unless agreed in writing and except as required by law for interoperability, Customer will not adapt, translate, reverse engineer, decompile, or derive source code for Software, or allow others to do so. Customer will not use Products for benchmarking or competitive purposes.

1.5 Service Providers

Customer may allow its external service providers to use the Products solely for purposes of providing outsourcing services for Customer’s benefit in accordance with the Agreement, and no duplication of the Products is permitted. Customer is fully responsible for the service provider’s compliance with the Order and this Agreement in its use of the Products.

1.6 Documentation

Customer may print a reasonable number of copies of the Documentation for internal use.

1.7 Proprietary Rights

DQLabs owns all proprietary rights in the Products, including all intellectual property rights, corrections, updates, and modifications. DQLabs reserves all rights not expressly granted to Customer.

1.8 Customer Data

Customer owns and controls all data it processes with the Products (“Customer Data”). Customer is responsible for the accuracy, quality, integrity, legality, reliability, and intellectual property rights in all Customer Data. Customer will: (i) ensure that providing Customer Data to Us complies with all laws; (ii) back up Customer Data; and (iii) comply with all applicable laws, including those related to protected health information and personal data.

1.9 Usage Information

Subject to Customer’s opt-out rights, Software will automatically transmit to DQLABS information about the computing and network environment in which the Software is deployed, including IP address and the data usage and system statistics of the deployment. Cloud Services will automatically collect information about the operation, organization, and use of the Cloud Services, including metadata but not Customer Data. We will use this information to provide the Products, deployment and usage analysis, usage suggestions, and to improve the customer experience. Customer may disable Software collection of information upon installation as described in the Documentation. Collection of information by Cloud Services, including any associated Software, is necessary to provide the Cloud Services and cannot be disabled.

1.10 Privacy and Security

DQLabs follows the privacy policy available at https://www.dqlabs.ai/privacy-policy/. Cloud Services may use third-party infrastructure, which are each independently audited and certified as SOC 2 compliant. DQLabs complies with all laws applicable to Us as the provider of the Cloud Services. DQLabs processes Customer Data via the Cloud Services in accordance with the terms of this Agreement and any reasonable instructions that Customer may give Us. DQLabs may hire subcontractors to provide services on Our behalf, but will require them to protect Customer Data. DQLabs may transfer Customer Data to the U.S. and other countries for processing. DQLabs will maintain reasonable safeguards for the security, confidentiality, and integrity of Customer Data, including measures to prevent unauthorized access, use, modification, and disclosure, except (a) to provide the Cloud Services and prevent or address service or technical problems, (b) as compelled by law, or (c) as Customer may expressly permit in writing. Where Customer’s use of any Cloud Services or Software includes the processing of personal data by DQLABS, the terms of the data processing shall apply to such processing and are hereby incorporated by reference. DQLABS cannot control the jurisdiction where the data originates; and neither DQLABS nor Our Products is a “data controller” or similar under applicable law with respect to Customer Data. As between You and Us, You are the sole “data controller.”

2. Services

DQLabs will provide Adoption Services and Installation Services as set forth in the Order and the DQLabs User Guide valid at the time of signature of the Order. We may modify the DQLABS Global Customer Support Guide from time to time, but We covenant that no such modification will materially degrade the Services during the Order Term.

3. Confidentiality

3.1 Confidential Information

“Confidential Information” means: (i) with respect to DQLabs, the Products (including code), Documentation, related technical and financial information (including this Agreement’s terms), and any of its non-public information; and (ii) with respect to Customer, all Customer Data, information collected under Section 1.9, and any of its non-public information disclosed to DQLabs. Information is Confidential Information if it is marked as confidential, identified as confidential at disclosure, or reasonably understood to be confidential.

3.2 Exclusions

Confidential Information does not include information that: (a) the Receiving Party had before disclosure, without confidentiality obligations; (b) is or subsequently becomes publicly available without Receiving Party’s breach; (c) is disclosed to Receiving Party, without confidentiality obligations, by a third party who has the right to disclose such information; or (d) Receiving Party can demonstrate was independently developed without reliance on any Confidential Information of the Disclosing Party, provided that if only part of any Confidential Information falls within one or more of the exceptions set out in this Section 4.2, the remaining part of the Confidential Information shall continue to be subject to the restrictions set forth in this Agreement.

3.3 Obligations

Both Parties agree that: (a) Receiving Party may use Confidential Information solely in order that the Receiving Party may fulfill its obligations under this Agreement; (b) Receiving Party shall instruct and require all of its employees, agents, and contractors who have access to the Confidential Information of the Disclosing Party to maintain the confidentiality of the Confidential Information; (c) Receiving Party shall exercise at least the same degree of care, but not less than reasonable care, to safeguard the confidentiality of the Confidential Information as Receiving Party would exercise to safeguard the confidentiality of Receiving Party’s own confidential property; (d) Receiving Party shall not disclose the Confidential Information, or any part or parts thereof, except on a “need to know” basis to those of its employees, agents, and contractors who are bound to confidentiality obligations at least as protective of the Confidential Information as those set forth in this Agreement; and (e) Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by a valid order by a court or other governmental body or by applicable law, provided, however, that Receiving Party will use all reasonable efforts to notify Disclosing Party of the obligation to make such disclosure in advance of the disclosure so that Disclosing Party will have a reasonable opportunity to object to such disclosure. If the Disclosing Party does not seek or obtain a protective order or other remedy or if it waives the provisions of this section, the Receiving Party may comply with the obligation to produce such Confidential Information to the extent that its counsel advises the Receiving Party that such production is not optional. This exception to the requirements of confidentiality applies only to the specific circumstances of the disclosure and does not cause any Confidential Information produced according to this Section to no longer be considered as “Confidential Information” hereunder, and the Receiving Party shall otherwise continue to treat such Confidential Information in accordance with this Agreement.

The Receiving Party will return any tangible materials containing Confidential Information, and any copies or reproductions thereof, to the Disclosing Party within ten (10) days after the Disclosing Party’s written request (which may be by email). The Receiving Party agrees to undertake whatever action is reasonably necessary to remedy any breach of the Receiving Party’s confidentiality obligations or any other unauthorized disclosure or use of the Confidential Information by Receiving Party, its employees, its agents, or contractors. The Receiving Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction without the necessity of posting any bond.

4. Adoption and Installation Services

4.1 Services

DQLabs will provide Adoption and Installation Services as described in the Order.

4.2 Compensation

The Order will contain the charges for Adoption and Installation Services. Customer will reimburse Us for approved travel and living expenses, with written receipts for expenses over $25. DQLabs may charge a fee if Customer requests Adoption or Installation Services with less than three (3) business days’ notice, as specified in the Order.

4.3 Ownership

Our materials contain pre-existing material developed by Us or Our licensors. DQLabs owns and retains all right, title and interest in all such pre-existing material. Customer has a non-exclusive, worldwide, royalty-free license to use, copy, and authorize others to use such pre-existing material (excluding DQLabs Products, documentation, and training materials) solely as part of their use of the Services and according to this Agreement. Except as otherwise expressly provided, DQLabs grants no other licenses to Our intellectual property.

5. Representations and Warranties

5.1 Product Warranty

DQLabs warrants that:

• Cloud Services will be provided in a manner consistent with the applicable Documentation under normal use and circumstances for the Order Term.
• Software will operate in conformity with the then-current standard Documentation (except for minor defects or errors not material to the core functionality of the Software under normal use and circumstances) for a period of ninety (90) days from the date of initial delivery of the Software (the “Warranty Period”).
• Adoption and Installation Services will be provided in a professional manner.

If a Product does not perform in accordance with the foregoing warranty during the Warranty Period, Customer must tell Us so in writing (which may be by email) no later than ten (10) calendar days after the termination of the applicable Warranty Period and, assuming DQLABS can verify such nonconformity, DQLABS will use reasonable efforts to correct any deficiencies in the Product or replace it so that it will perform in accordance with the warranty. Customer’s sole and exclusive remedy, and Our sole obligation in the event of non-conformity of the Product with the foregoing warranty, will be the correction of the condition making it nonconforming. Customer agrees to provide all information reasonably requested to enable Us to cure the nonconformity. The above warranty specifically excludes defects resulting from accident, abuse, unauthorized repair, modifications, misapplication, or use of the Product that is otherwise materially inconsistent with the Documentation.

5.2 Disclaimer

EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS AND SERVICES PROVIDED UNDER THE AGREEMENT, INCLUDING WITHOUT LIMITATION ALL DQLABS CONTENT, ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY, AVAILABILITY, QUALITY, SUITABILTIY, ACCURACY, COMPLETENESS, OR INTEROPERABILITY ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY DQLABS AND ITS LICENSORS.

6. Intellectual Property Indemnification

6.1 If a third party sues You claiming that the Product infringes the third party’s patent, copyright, or trade secret, then subject to the provisions below DQLABS will indemnify You and defend and hold You harmless from any fees, fines, costs, liens, judgments, or expenses actually awarded or incurred arising from that third party claim. Our obligation to indemnify You is contingent on the following: (a) DQLABS must be given prompt written notice of and all available information about any such claim; (b) DQLABS has the right to control and direct the defense and any settlement of such claim; provided, however, that no such settlement requires admission of wrongdoing or payment of damages on the part of You; and (c) You reasonably cooperate with DQLABS in such defense, pursuant to which (i) You may participate in, but You may not control, the defense of the claim, and (ii) You may retain Your own counsel for such participation).

6.2 DQLABS will not indemnify You against, and DQLABS shall have no responsibility for, any third-party action that arises in any way out of any of the following: (a) any modification of the Products; (b) Your failure to deploy updates to the Products as supplied by Us to customers current under Support Services; (c) the combination, operation, or use of the Products with non-DQLABS programs, data or documentation, if such action would have been avoided by the use of the Products without such combination, operation or use; (d) any use of the Products that is not expressly permitted under this Agreement; (e) Your continued use of infringing Products after termination or after DQLABS supplies modified or replacement non-infringing Products as contemplated under 7.3(a) below; or (f) materials developed by Us in accordance with Your instructions.

6.3 If DQLABS receives information causing it to learn of the existence of or reasonably anticipate a claim of infringement related to the Products are likely to or do, then DQLABS may, in each case at Our sole option and expense: (a) modify the Products to be non-infringing while preserving substantially equivalent functionality; (b) obtain for You a right to continue using the Products; or (c) terminate this Agreement and the rights granted hereunder, accept return of the Products and refund a pro rata portion of the applicable fee paid for that portion of the Products which is the subject of the claim. For perpetual licensed Software the refund will be based on a straight-line amortization over a five (5)-year term beginning on the date of initial delivery of the Products. For Cloud Services and subscription Software, the refund will be the prepaid and unearned fees covering the remainder of the Order Term).

6.4 THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATION OF DQLABS, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OR CLAIMS OF INFRINGEMENT BY THE PRODUCT, OR ANY PART THEREOF, OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.

7. Term, Termination; Effects of Termination

7.1 Product Term. Unless otherwise stated in the Order, the Order Term for each Software subscription or Cloud Services is: (i) the time period specified in the applicable Order, commencing on the date of delivery or (ii) for Cloud Services provided on a transaction basis, the validity period for processing the transactions, and any renewal terms.

7.2 Each Party has the right to terminate this Agreement and any and/or all rights granted under this Agreement upon written notice to the other Party