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Software As A Service Agreement

Last updated: Nov 11 2023

This Software As A Service Agreement (the “Agreement”) constitutes the contract by and between Inquiry Quest, a corporation existing under the laws of Florida (“Licensor”) and the person or entity identified on the Quote as the Customer of the Software (“Customer”).

By clicking “I Agree”, you are agreeing to the terms of this Agreement and you (A) accept this Agreement and agree that Customer is legally bound by its terms; and (B) represent and warrant that, if Customer is a corporation, governmental organization, or other legal entity, you have the right, power, and authority to enter into this Agreement on behalf of Customer and bind Customer to its terms. If Customer does not agree to the terms of this Agreement, do not click “I Agree,” or attempt to access the Services or to download the Terminal Software. This Agreement is effective on the date that you agree to the terms of this Agreement (the “Effective Date”).

THEREFORE, the parties agree as follows:

1.     Definitions

 

The following terms shall have the meaning set out below; all other capitalized terms not otherwise defined in this Section shall have the meaning set forth in the Agreement:

  1. “Confidential Information” means, with respect to a party hereto, all information or material which: is (A) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (B) known by the parties to be considered confidential, proprietary, or is confidential under applicable law or (C) which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Confidential Information of Licensor shall include, without limitation, the Software, the Documentation, and any information with respect to the Services that Licensor may provide to Customer from time to time, including without limitation, all information disclosed by Licensor relating to the security of its facilities, computer systems and products.  Confidential Information does not include   information to the extent that such information: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party hereunder; (ii) was previously known to the   receiving party as evidenced by its written records; (iii) is rightly received by the receiving party from a third party who is not under an obligation of confidentiality; or (iv) is independently developed by the receiving    party without reference to or use of the other party’s Confidential Information and which such independent development can be established using evidence that would be  acceptable to a court of competent   Confidential Information of Licensor shall include, without limitation, the Services, the Software, Documentation, and any  information with respect to the Services that  Licensor may provide to Customer  from time to time, including without limitation, the terms and conditions of this Agreement and all information disclosed by Licensor relating to the security of its facilities, computer systems and products.
  1. “Data” means all data that is received by Customer and all other content transmitted, posted, received or created through Customer’s use of the Services or the
  1. “Documentation” means user guides, operating manuals, education materials, product descriptions and specifications, technical manuals, supporting materials, and other information relating to the Software or used in conjunction with the Software, whether distributed in print, magnetic, electronic, or video format, in effect as of the date the Software are provided to the
  1. “Licensing Agreement” is the Inquiry Quest Software License Agreement that applies to the software component of the Software – which is the Terminal Software – and is available at inquiryquest.com as more delineated in   a Quote.
  1. “Quote” means the quotation provided by Licensor to Customer, and accepted by Customer, that accompanies this Agreement and which is further defined in the Licensing Agreement; the Quote details additional terms associated with Customer’s participation as a Customer together with any related services. More than one Quote may be established for Customer. For clarity, the Quote may also include further terms and conditions applicable to the use of the Software and several Quotes may be used for different aspects of the
  1. “Services” and “Software Services” each means the web-based service(s) commonly referred to as a “Software as a Service” (SaaS) solution to be provided by or on behalf of Licensor under this Agreement that includes hosting, monitoring, operating and maintaining the Software as a service at a site owned or controlled by Licensor and the delivery of non-exclusive access via the Internet to Customer to use the Software, as a service, granted to Customer pursuant to Section 2 hereof. The Services shall also include storing all data entered and maintained by Users through use of the Services in a manner as determined by  the
  1. “Software” means the Services and the Terminal
  1. Terminal Software” means that portion of the Software that is downloaded on each local server or any other device (including items such as a laptop, portable tablet, or any other computing type device) in order to access the Services and which may also be referred to as “Software” which are listed in the Quote to  either this Agreement or the Licensing Agreement.
  1. “Term” has the meaning ascribed to it in section 5 of the
  1. “Third Party Components” means any third party telecommunications, energy/utility transportation, managed facilities and/or software applications and services that Licensor or its service providers have licensed or purchased and provided access to or otherwise made available as part of the Services or, when applicable, have been purchased by the Customer for us with the Services. These Third Party Components can include a third party hosting provider and social
  1. “User” means an employee or duly authorized agent of Customer that has been authorized by the Customer in writing to access and use the


2.   Authorization

 

Subject to the terms and conditions of this Agreement, Licensor hereby grants to Customer a personal, non- exclusive, non-transferable limited right during the Term (a) to install and use the Terminal Software on the number of sites specified in in the Quote (the “Sites) solely for use with the Services but otherwise subject to the terms of the Licensing Agreement; (b) to allow Users to access and use the Services on a defined term subscription basis  at the Sites and in accordance with the Documentation solely for Customer’s internal business purposes; and (c)   to use, copy and modify the Documentation solely for the purpose of creating and using internal training materials relating to the Services.


3.   Fees

 

In consideration of the provision of the Services and access to the Services, Customer will pay the applicable fee to Licensor in accordance with the terms of the Quote. For normal SaaS Services, the fee shall be an annual subscription fee to be paid yearly in advance unless the Quote states otherwise. Customer agrees to pay any and all additional fees, including License Fees, associated with any use of the Software per the Quote.

In the event that the Quote states that the Customer will be provided with the Inquiry Quest, LLC SW Subscription and Support Program, the Customer shall pay the associated fees as set out in the Quote. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (a)  Licensor may charge interest  on the past due amount at the rate of 1% calculated daily and compounded monthly or, if lower, the highest rate

permitted under applicable law; and (b) Customer shall reimburse Licensor for all costs incurred by Licensor in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days following written notice thereof, Licensor may prohibit access to the Software and the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such prohibition of access to the Software.

Licensor shall provide Customer with an electronic invoice detailing payment due to Licensor. Upon the receipt of Licensor invoice sent to Customer, Customer shall pay Licensor the fees by bank transfer within thirty (30) calendar days upon the receipt of a valid invoice. Licensor will not provide credits or refunds for fees paid except as expressly set out in this Agreement.

The fees are exclusive of any applicable sales, use, services, consumption, excise and other transaction-based taxes which may be assessed by any governmental body, agency or taxing authority (including at the federal, provincial, county and/or local level). Customer is responsible for all goods and services, harmonized sale, sale, service, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, state or territorial governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Licensor’s income.

To the extent that Users or  the Customer use any services or access any  third party sources that provide Data  for the use of the Customer or set up such usage in an automated format that contravene Subsection 6(k) of this Agreement, additional ‘usage charges’ may be required to be paid by the Customer as invoiced by Licensor.

To the extent that the Customer procures any Third Party Components on its own behalf, the Customer will be liable for all payments to the applicable providers and the Licensor.


4.   Additional Professional Services or SW Support

 

If the Customer requests any additional professional services, such services shall be supplied to a separate professional services agreement.

If the Customer obtains the Inquiry Quest Subscription and Support Program, the Inquiry Quest Subscription and Support Program shall be subject to and provided in accordance with the terms of the Licensing Agreement.


5.   Term

 

Unless terminated earlier in accordance with the terms hereof, this Agreement shall commence on the Effective Date detailed in the Quote for an undetermined term (the “Term”). The Agreement will end on any of the following occurrences: (i) a breach of this Agreement permitting the termination of this Agreement, (ii) when the Services  and Terminal Software achieve GA status pursuant to subsection 8(b) and the parties agree to a subsequent Inquiry Quest License Agreement and Inquiry Quest SaaS Agreement as described in section 4, or (iii) upon thirty (30) days’ notice for convenience by either Party.


6.   Restrictions on Use

 

  • Except as expressly provided herein, Customer may not give away, rent, lease or otherwise sell, re-sell, sublicense, distribute or transfer the license rights granted under this Agreement or otherwise use the Software or Services except as expressly permitted by this Agreement without the prior written consent of
  • Customer agrees that it will not reverse engineer, decompile, translate or otherwise attempt to derive, or permit or help others to derive the source code relating to all or any part of the Software or Software Services, or attempt to otherwise convert or alter the Software or Software Services into human readable code, except to the extent applicable law expressly prohibits the foregoing
  • Customer may duplicate Documentation, at no additional charge, for Customer’s internal use so long as all required proprietary markings are retained on all duplicated
  • No third party, other than duly authorized agents or employees of Customer authorized pursuant to Section 2 hereunder as Users, shall have access to or use of the Software or Services. Where the agents are third parties and not employees of the Customer, the Customer must inform the Licensor of the identities of any such agents and provide additional information as reasonably requested by Licensor. The Licensor may provide authorization for the agents to have access or to not have access to the Services and Software at the Licensor’s sole and unfettered discretion. Customer is responsible for the acts of its duly authorized agents and any act or omission carried out by an agent or employee shall be deemed to be an act of the
  • Customer shall not copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business
  • Customer shall not access the Services or permit any agents access to the Services in order to (i) build a competitive product or service; (ii) copy any features, functionality or graphics of the Software; or (iii) knowingly allow access to any competitor of
  • The Customer shall not transmit, upload, post, distribute, store or otherwise publish, through use of the Services, any data, material or Information that: (i) contains a software virus, Trojan horse, worm or other harmful or deleterious computer code, files or programs that may adversely affect any hardware or software, or that intercepts or misappropriates any data or information, and otherwise affects the performance of the  third party service provider; (ii) violates the terms of service document of the relevant host provider as made generally available the by the host provider identified in your Quote; (iii) infringes or otherwise violates any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party;

(iv) violates any law, statute, ordinance or regulation; or (v) includes unsolicited bulk e-mails, advertisements  or solicitations.

  • Customer shall not interfere with or disrupt services or networks connected to the system used to provide the Services and shall not attempt to gain unauthorized access to the Services or such services or networks connected to the system used to provide the
  • Customer shall not provide the results of using the Services for the purposes of monitoring its availability, performance, functionality, benchmarking or competitive analysis to any third
  • In addition to its termination rights under Section 16, Licensor my restrict or limit Customer’s access to the Services if Licensor reasonably determines that Customer has engaged in or is likely to engage in (whether knowingly or unknowingly) any prohibited conduct described herein and such conduct, in Licensor’ reasonable opinion poses any risk of any kind or nature to Licensor or its service providers’ network, business or other customers. As promptly as practicable after becoming aware of Customer’s engagement in any such prohibited conduct, Licensor will use reasonable efforts to notify Customer of the restriction or limitation to Customer’s access to the Services and will promptly restore Customer’s access after Licensor has had reasonable assurance that such conduct has been permanently discontinued. In addition to and  without limiting the foregoing, Licensor reserves the right to refuse to post or to remove in whole or in part any information or materials provided or submitted by or on behalf of Customer in connection with its use of the Services that Licensor determines, in its reasonable  discretion, are either in violation of this Agreement or  pose any risk of any kind or nature to Licensor or its service provider’s network, business or other
  • The Customer shall not automate any aspect of the Service during the Term. Any breach of this subsection  will permit the Licensor to invoice a ‘fair usage’ charge against the Customer where the Customer has automated accessing or querying an Inquiry Quest Service or Third Party Component with a human performing the action. The right to payment under this section is not the sole remedy available to Licensor and all other remedies available at law and in equity are still


7.   Services Availability (SaaS)

 

  • Licensor shall provide all facilities, equipment, and software required to make the Software Services available. 
  • Licensor shall use commercially reasonable efforts to make the Services available to Users twenty four (24) hours per day, seven (7) days per week but the Licensor does not warrant any service levels associated with the Services;
  • Licensor reserves the right to have additional User acceptance criteria that may be applied to Users prior to their ability to have access to the Software Services. Licensor shall inform Customer of such criteria but Licensor shall be free to implement such criteria at any time without prior written warning to the Customer and/or to Users. Where Users do not accept such and/or agree to such criteria,  Licensor reserves its rights   to not grant to such Users access to the Software Services.  Licensor reserves its rights to restrict access to  the Software Services to Users for any violation of any additional terms and conditions to which such Users accept/agree to access the Software
  • Licensor shall provide installation, configuration, system administration and maintenance of the facilities and equipment and software required to operate and ensure availability of the Software Services. Licensor will initially be responsible for the creation and maintenance of all User accounts. Upon notice from Licensor, the Customer shall be responsible for the creation and maintenance of User accounts. Customer, not Licensor, shall be responsible for creating and maintaining all User account information and for performing all other application level system administration functions that are available within the Software Services.
  • Licensor shall comply with the terms and conditions regarding access and use of Data as set out in Section 18 of this
  • Customer acknowledges that in order to provide the Services, Licensor may be required to purchase access rights to some of or all of the Third Party Components. Additionally, in certain circumstances the Customer may be required to purchase access to certain Third Party Components. In either case, Customer acknowledges that the availability of such Third Party Components is based solely on the best information available to Licensor  and its service providers as of the Effective Date including third party representations  and government regulations and is subject to change during the Term with little or no advance notice. If any necessary Third Party Components are determined by Licensor to be unavailable as a result of changes  to  any third party availability, governmental regulations or other condition or circumstance outside of Licensor’s control, then (a) Licensor shall not be in breach hereof or otherwise liable for any failure or inability to provide the Services as a result of such unavailability of any Third Party Components; and (b) Licensor may in its sole discretion modify, change or replace the applicable Third Party Components and otherwise attempt to mitigate the impact of the such unavailability of Third Party Components, subject to the right to terminate in accordance with section

 

8.   Customer Responsibilities

 

  • Customer Equipment. Customer agrees that it shall be responsible, at its sole expense, for providing all Internet access, including but not limited to obtaining, installing and maintaining all equipment, hardware, network, Internet or direct telecommunications connections and software applications (e.g. web browser) at Customer’s facilities required for Users to access and use the Services. Licensor shall not be responsible for the operation of any Internet, network or other communication services. Customer further acknowledges that access to and the operation of the Services requires Customer’s and Users’ hardware to be of sufficient quality, condition and repair, and Customer agrees to and/or to ensure that Users’ maintain their applicable hardware in the appropriate quality, condition and repair at its sole cost and expense. These requirements may also be necessary in order to facilitate the achievement of Completion of Services related to any Professional Services supplied by Licensor. Customer will agree to all requirements as set out by a Third Party Component provider to the extent that the Customer’s ability to access the Services is contingent upon such agreement as detailed by the Third Party Component provider
  • Passwords. Customer agrees to comply with all Licensor security policies and procedures as provided to it and amended from time to time. Customer and its Users shall be responsible for keeping any and all passwords and user ID’s assigned to it its Users secret and confidential. Customer agrees that it is and shall remain solely and completely liable for any communications or other uses that are made using Customer’s or its Users’ passwords and user ID’s, as well as any obligation that may result from such use. Customer agrees to notify Licensor in writing to change Customer or User’s password(s) for any reason, including without limitation if it believes that a password has been stolen or might otherwise be misused. Customer agrees to notify Licensor immediately of any unauthorized use of any password or user ID or any other breach of security suspected by
  • The Customer is responsible for: (i) the actions of Users using the Services in accordance with this Agreement; (ii) ensuring that Users agree to any further terms and conditions as may be provided by Licensor from time to time for Users; and (iii) informing Licensor of any information about Users’ actions that may affect either the Services or third party data contained in or used by the Services, or Licensor’ ability to provide the Services as contemplated by this Agreement.
  • Compliance with Laws. Customer represents and warrants to Licensor that it and its Users will at all times   be in compliance with all applicable local, state, provincial, federal and international laws including but not limited to those laws regarding restrictions on exports, defamation, libel, harm to reputation, invasion of privacy, misuse or failure to protect personal information, violation of secrecy, confidentiality, unfair competition and other situations which could generate
  • Data Security. Customer acknowledges and agrees that use of or connection to the Internet is inherently insecure and provides opportunity for unauthorized access by a third party to Customer’s and its Users’ (as well as Licensor’) computer systems, networks and any and all information stored therein. Customer is solely responsible for ensuring that (i) Customer’s computer systems are secure and protected from unwanted interference (such as “hackers” and viruses), (ii) all transmissions are screened for viruses or other harmful code prior to transmission to Licensor’ servers; and (iii) Data is

LICENSOR DOES NOT GUARANTEE THE PRIVACY, SECURITY, AUTHENTICITY, AND NON- CORRUPTION OF ANY INFORMATION TRANSMITTED OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. WE SHALL NOT BE RESPONSIBLE FOR ANY ADVERSE CONSEQUENCES WHATSOEVER OF CUSTOMER’S OR ITS USERS’ CONNECTION TO OR USE OF THE INTERNET, AND LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY USE BY CUSTOMER OR ANY USER OF CUSTOMER’S INTERNET CONNECTION IN VIOLATION OF ANY LAW, RULE OR REGULATION.


9.   Delivery Schedule

 

The parties will mutually agree in writing upon a delivery schedule for access to be granted to the Services and   the setup of User accounts.



10.   Warranty and Warranty Disclaimer

 

  1. Limited Warranty. Licensor warrants to Customer that the Services shall be performed at a level and shall substantially conform to the specifications, as stated in Licensor’s Documentation provided to Customer, provided that all use of the Services is for the purposes and in the environment for which they were designed and in accordance with such specifications as may be set out in the Quote and as modified from time to time. Customer’s sole remedy in the event the Services do not conform to the foregoing limited warranty is for Licensor to use commercially reasonable efforts to correct such non-conformance and the right to terminate this Agreement in accordance with Section 16(b).
  1. Warranty Disclaimer. TO THE GREATEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET OUT IN SECTION 10(A), THE SERVICES, THE TERMINAL SOFTWARE, THE PROFESSIONAL SERVICES AND ANY OTHER PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED TO CUSTOMER “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, AND THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS,

EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT, SERVICE OR MATERIAL PROVIDED HEREUNDER OR IN CONNECTION HEREWITH.

LICENSOR, ITS LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTIES OR CONDITIONS REGARDING THE SOFTWARE, THE SERVICES, THE PROFESSIONAL SERVICES AND ANY OTHER PRODUCTS, SERVICES AND MATERIALS PROVIDED HEREUNDER OR IN CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.

LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE SOFTWARE SHALL OPERATE ERROR FREE OR UNINTERRUPTED, SHALL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT ALL ERRORS OR DEFECTS IN THE SERVICES OR SOFTWARE CAN BE FOUND OR CORRECTED.

WITHOUT LIMITING THE FOREGOING, LICENSOR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH REGARD TO PRODUCTS OR SERVICES FROM THIRD PARTIES (INCLUDING WITHOUT LIMITATION THE THIRD PARTY COMPONENTS, THE HARDWARE, THE OPERATION OF THE INTERNET, NETWORK OR OTHER COMMUNICATION SERVICES) AND ASSUMES NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO THE FOREGOING OR  THE  APPROPRIATENESS OF YOUR DATA MANAGEMENT SYSTEM OR THE ACCURACY OF DATA CONTAINED IN SUCH SYSTEM.

NO AGREEMENTS VARYING OR EXTENDING ANY EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT SHALL BE BINDING ON EITHER PARTY UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED SIGNING OFFICER OF LICENSOR.

CUSTOMER CONFIRMS THAT IT HAS THE SOLE RESPONSIBILITY FOR ALL USE OF THE SERVICES AND TERMINAL SOFTWARE, FOR ANY PRODUCTS OR SERVICES THAT USE THE TERMINAL SOFTWARE AND SERVICES, AND ANY USE OF SUCH PRODUCTS OR SERVICES BY OTHERS, INCLUDING BUT NOT LIMITED TO THE RESPONSIBILITY TO ASSESS  WHETHER THE SERVICES   AND TERMINAL SOFTWARE AND USE THEREOF IS APPROPRIATE FOR CUSTSOMER’S INTENDED PURPOSES, AND CONSIDERING THE RISKS ASSOCIATED WITH THE SERVICES AND TERMINAL

SOFTWARE AND USE THEREOF. Customer agrees to indemnify, hold harmless, and, upon Licensor’s request, defend Licensor and its affiliates and their respective contractors, licensors and agents and all such person’s officers, directors and employees, from and against all third party claims, actions and demands,    and all resulting liabilities, damages and losses of any type, expenses (including reasonable legal fees), settlements, or judgments suffered or incurred by such parties to the extent that they result from or arise out of: (i) access, installation or use of the Software by the Customer, the Users; (ii) the failure of Customer to comply with any applicable laws, including applicable export laws; (iii) breach of any of the terms and conditions of this Agreement, and (iv) any representations by Customer or the Users regarding the Services and Terminal Software, or the use of performance thereof, howsoever made, without the prior written    consent of Licensor.

THE WARRANTY DISCLAIMERS ABOVE REPRESENT THE INHERENT RISKS ASSOCIATED WITH PLATFORMS AND THE FACT THAT THE SERVICES AND TERMINAL SOFTWARE ARE BEING  PROVIDED AT NO COST TO THE CUSTOMER. CUSTOMER  ACKNOWLEDGES  AND AGREES  THAT THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY SET OUT IN THIS AGREEMENT  ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF BARGAIN BETWEEN THE PARTIES  AND  LICENSOR WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE, OR  THE  DOCUMENTATION WITHOUT SUCH LIMITATIONS.

 

11.   Limitations on Liability

 

TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND REPRESENTATIVES SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY  THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING IN RESPECT OF LOST PROFIT OR REVENUE OR OPPORTUNITY, EXPECTED SAVINGS OR ANY OTHER ECONOMIC CONSEQUENTIAL LOSS OR DAMAGE) OR ANY LOSS OF, OR DAMAGE TO, DATA, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

ANY LIABILITY OR OBLIGATIOIN TO PAY BY THE LICENSOR TO CUSTOMER FOR ANY REASON, THEN THE LICENSOR’S AND ITS OFFICERS’, DIRECTORS’, EMPLOYEES’ AND REPRESENTATIVES’ LIABILITY SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY CUSTOMER AND SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT PAID BY THE CUSTOMER TO THE LICENSOR IN THE PRECEDING TWELVE MONTH PERIOD BEGINNING ON THE DAY ON WHICH THE INCIDENT GIVING RISE TO THE LIABILITY OR OBLIGATION TO PAY FIRST AROSE.

 

The foregoing limitations and exclusions of liability shall apply in respect of any expense, damage, loss, injury, or liability of any kind, regardless of the form of action or theory of liability (including for breach of contract, tort, negligence, strict liability, by statute or otherwise) and shall survive a fundamental breach   or breaches or the failure of the essential purpose of this Agreement or of any remedy contained herein.

 

  1. Cancellations and Termination

 

  • This Agreement may be terminated as follows:
    1. If either party is in material breach of any of its obligations or any provision under this Agreement, the other party must notify the breaching party in writing of such default (a “Default Notice”). Upon receipt of a Default Notice, the breaching party must correct the default at no additional cost to the other party within ninety (90) days, or issue a written notice of its own disputing the alleged default within thirty (30) days, of the date of receipt of a Default If the breaching party fails to correct the default within such ninety

(90) day period, and did not issue a notice disputing the alleged default within such thirty (30) day period, the other party may terminate this Agreement upon written notice to the other party to that effect.

  1. Licensor may terminate this Agreement effective immediately upon written notice to Customer if Customer has breached its obligations of confidentiality or any intellectual property right or proprietary right of Licensor.
  • Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party: (i) becomes insolvent; (ii) becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law, whether domestic or foreign, and whether voluntary or involuntary, which is not resolved favorably to the subject party within ninety (90) days of commencement thereof; or (iii) becomes subject to property seizure under court order, court injunction or other court order which has a material adverse effect on its ability to perform


13.  Effects of Termination

In the event of termination or expiration of this Agreement:

  1. All rights granted to Customer in this Agreement shall immediately terminate and Licensor will immediately cease to perform or provide the Services. All licenses and rights in the Software shall end immediately upon the effective date of termination. The Customer shall erase all copies of the Terminal Software and shall no longer access or attempt to access the
  1. The Licensing Agreement shall be terminated coincidentally with the termination of this Agreement but only in relation to the Terminal
  1. Each party shall either purge or destroy all copies of any Confidential Information of the other party in its possession or under its control (except as required under any statute or legislation related to retention requirements or which is in an inaccessible backup copy made in the regular course), and provide a duly authorized certificate of an officer of the party confirming same within thirty (30) days  of a request made  by the other
  2. Except as otherwise provided in this Agreement, termination of this Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking


14.  Ownership

 

  • By Licensor. Licensor, its  service providers and its licensors are and shall at all times remain the owner of   all copyright, trademarks, trade secrets, patents and any other intellectual property rights in and to the Terminal Software, the Services, Third Party Components and related documentation, materials, logos, names and  other support materials provided pursuant to the terms of this Agreement. Customer shall acquire no right whatsoever to all or any part of the Services, Software, or underlying software except the limited right to access and use the Software and Services in accordance with the terms of this Agreement and Licensor and its licensors reserve all rights not expressly granted to Customer. Customer’s rights to use the Terminal Software shall be in compliance with the Licensing Agreement. Customer must fully reproduce any copyright or other notice marked on any part of the documentation or other materials on all authorized copies and must not alter or remove any such copyright or other notice. Customer hereby grants to Licensor a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services and Software any suggestions, ideas, enhancement requests, recommendations  or other feedback provided by Customer relating to the operation   of the Services or Software and for any information provided by the
  • Customer Data. As between Licensor and Customer, all Data will remain the sole and exclusive property of Customer. Customer is solely responsible for ensuring the accuracy, quality, integrity, reliability, appropriateness and right to view and use the Data. Subject to the terms and conditions of the Agreement, Customer grants to Licensor a world-wide, non-exclusive, royalty-free license to access the Data for the purpose of performing the Services. Access to the Data shall only be by Licensor’s employees and/or subcontractors whose job function requires access. Except as specified in this Agreement, Licensor may not access the Data for any other purpose without the express written consent of Customer. Access to Data by any outside party shall only be in accordance with the terms of this Agreement or where required by

Customer grants to Licensor a world-wide, non-exclusive, royalty-free license to aggregate or compile Data with the customer data of other customers using the Services so long as such aggregation or compilation  omits any data that would enable the identification of Customer, its clients or any individual, company or organization (“Aggregated Data”). Licensor shall have a worldwide, perpetual, royalty-free license to use, modify, distribute and create derivative works based on such Aggregated Data, including all reports, statistics or analyses created or derived therefrom. Additionally, Customer grants Licensor the right to access Data to provide feedback to Customer concerning its use of the Services.

(c)   Data and Privacy Policy of Customer

 

The Customer represents and warrants to Licensor that – and all such representations and warranties are subject to the exclusions set out in subsection 14 (d):

  1. Data that is either provided to or acquired by Licensor from Customer is owned exclusively by Customer and that the Customer has full right and title to provide the Data to Licensor;
  1. Data that is either provided to or acquired by Licensor on behalf of the Customer is subject to a privacy policy in effect as of the Effective Date and those from which the Customer has acquired the Data have provided to Customer their written consent for its collection, use and storage by Licensor and its third-party service providers in accordance with this Agreement and in any applicable jurisdiction;
  • Customer complies with all applicable privacy legislation as of the Effective Date in the  performance of its obligations hereunder in respect of any Data collected, used, transferred, created, or disclosed pursuant to this Agreement;
  1. Licensor’s obligation for any Data that is stored by the Licensor (either directly or indirectly through the use of Third Party Components) are entirely as a result of the Customer’s use of the Services and are solely at the risk of the Customer: the Licensor does not provide any security warranty of any kind in the use of the Service; and
  1. Customer will not provide Licensor with data of any kind for which Licensor either has no need or does not have the right to collect, use and store under the terms of this

(d)   Data from the Licensor.

To the extent that the Data is received by the Customer either directly from the Licensor or through a third  party provider that has an agreement to provide data with the Licensor and to which there is a reference in the Quote, then Licensor warrants that the Data is provided with full right by Licensor to provide the Data to the Customer subject to all of the warranties and representations made on the part of the Customer and based on other information provided by the Customer to the Licensor.


15.  Confidential Information

 

The parties agree to keep confidential any and all Confidential Information with respect to the other party which it has received or may in the future receive in connection with this Agreement and shall only disclose such Confidential Information of the other party (i) to its agents, employees or representatives who have a need to know such information, for the purpose of performance under this Agreement and exercising the rights granted under  this Agreement, and who have entered into a non-disclosure agreement at least as protective of the other party’s Confidential Information as this Agreement, or (ii) to the extent required by applicable law or during the course of   or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of this Agreement, provided  that the receiving party shall give the disclosing party reasonable notice  prior  to such disclosure and shall comply with any applicable protective order or equivalent. The parties each agree to hold the other party’s Confidential Information in confidence and to take all reasonable steps, which shall be no  less than those steps it takes to protect its own confidential and proprietary information, to protect the Confidential Information of the other party.

In addition to any other restrictions on Licensor’ use of the Data, the confidentiality obligations above apply except to the extent that both parties agree that the Data may be subject to privacy laws providing for the owners of the Data to review such Data or to challenge the collection and storage of the Data. Customer shall indemnify and reimburse Licensor in relation to all reasonable fees and other disbursements paid by Licensor to comply  with  such requests, whether by an individual or a government body, or to challenge such requests at either Licensor’    or Customer’s request. Customer represents and warrants to Licensor that as of the Effective Date no individual, government body or third party has requested a review of the Data or challenged the collection and storage of the Data to be stored in the Software.


16.   Indemnity

Customer is solely responsible for its Data, its use, and its Users’ use, of the Services in any way, and all legal liability arising out of or relating thereto. Customer shall defend, indemnify and hold Licensor and its third party service providers, if applicable, and each of their respective officers, directors, employees and agents (the “Indemnities”) harmless from and against any and all losses, costs, damages and expenses (including reasonable attorney’s fees) that the Indemnities may suffer in connection with any demands, claims, actions, suits or proceedings arising out of or in connection with (i) the use of the Services including but not limited to any Third Party Components by Customer or its Users; (ii) any breach by Customer or its Users of this Agreement; or (iii) Customer’s Data, including but not limited to any third party claims that the inclusion, use, reference, incorporation

of or linking to any third party materials or the Customer’s Data violates such third party’s copyright and/or other intellectual property, privacy or other rights, or that such use is illegal.


17.  General

  • Governing Law; Venue: This Agreement shall be governed by and construed in accordance with the laws of Canada and the province of Ontario, each as applicable. This Agreement expressly excludes that  body  of  law applicable to choice of law, the Uniform Commercial Code and the United Nations Convention  on Contracts for the International Sale of Goods and any legislation implementing such Convention, if otherwise applicable.
  • Mediation: Except where this Agreement explicitly states that this Section does not apply, the parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to non-binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties.   Such mediator shall be knowledgeable   in software system agreements. The mediation shall take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either party notified the other of its desire to have a dispute be placed before a mediator.  The costs and expenses  of mediation, including compensation and expenses of the mediator (and except for the attorneys’ fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, controversy or dispute within ninety (90) days after the date either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. Nothing in this Section shall inhibit a party’s right to seek injunctive relief at any
  • Notice: Any notice required or permitted hereunder shall be written in English and shall be deemed to have been given when dispatched by email to the Licensor or to the Customer, or when delivered by overnight courier or air-mailed prepaid first class registered or certified mail and addressed to the respective representatives set out in the Quote once actually received by the Licensor or the Customer. The Quote shall contain any respective email and address to which notice is to be sent. Any email notice to the Licensor shall have a copy sent to: legal@inquiryquest.com
  • Currency: Unless otherwise indicated, all dollar amounts referred in this Agreement are in lawful money of the United States of
  • Use of Name. Customer agrees to the following promotional activities in relation to the purchase of Licensor’ solutions, products and services: (i) Customer permits Licensor to issue a mutually agreed upon press release announcing Customer’s purchase of Licensor’ products and services; and (ii) Customer grants Licensor the right to reasonably include the Customer’s name and logo in published lists referencing the users of the products and services of Licensor. Customer may unilaterally withdraw their consent to the above  promotional activities at any time by providing written notice to Licensor of said revocation.
  • Entire Agreement: This Agreement together with the Quote constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, negotiations, understandings, arrangements, and communications between the parties, both written and oral, relating to the subject matter hereof except for the Licensing Agreement, which is an agreement that subsists on its own terms. No terms and conditions in any Customer orders, or in any other documentation employed by or on behalf of Customer in connection with this Agreement, regardless of the date of such documentation, will affect the terms of this Agreement, even if such document is accepted by  the receiving party, with such provisions being deemed deleted. This Agreement may only be modified by a written amendment signed by an authorized representative of each of the parties. Despite the foregoing, the parties acknowledge that various other agreements may be entered into either contemporaneously with acceptance of this Agreement or otherwise and as either detailed herein or in the associated
  • No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
  • Assignment: Customer may not assign any of its rights or duties under this Agreement without the prior written consent of Licensor, such consent not to be unreasonably withheld. This Agreement shall inure to the benefit of and be binding upon the parties to this Agreement and their respective successors and permitted assigns.
  • Severability: If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent necessary in order to render such provision valid and enforceable. If such provision may not be so saved, it shall be severed and the remainder of this Agreement shall remain in full force and effect.
  • Allocation of Risk: Customer acknowledges and agrees that the warranty disclaimer and limitation of liability contained in this Agreement are fundamental elements of the basis of the bargain between Licensor and Customer and set forth an allocation of risk reflected in the fees and payments due
  • Relationship: The parties are and shall at all times remain independent contractors in the performance of this Agreement and nothing herein shall be deemed to create a joint venture, partnership or agency relationship between the parties. Neither party will have the power to bind the other  party  or to contract in  the name of or create any liability against the other party in any way for any purpose. Neither party will be responsible for the acts or defaults of the other party or of those for whom the other party is law
  • Equitable Relief: Customer acknowledges and agrees that it  would be difficult to compute  the monetary  loss to Licensor arising from a breach or threatened breach of this Agreement by Customer and that, accordingly, Licensor will be entitled to specific performance, injunctive or other equitable relief in addition to  or instead of monetary damages in the event of a breach or threatened breach of this Agreement by
  • Force Majeure: No default, delay or failure to perform on the part of Licensor shall be considered a breach of this Agreement where such default, delay or failure is due to a force majeure or to circumstances beyond  its control. Such circumstances will include, without limitation, strikes, riots, civil disturbances, actions or inactions concerning government authorities, epidemics, war, terrorist acts, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy or default of a common carrier, unavailability of Third Party Components or other disasters or
  • Survival: Sections 1 (Definitions), 6 (Restrictions on Use), 8(i) (Compliance with Laws), 8(j) (Security), 10 (Warranty and Warranty Disclaimer), 11 (Limitations of Liability), 13 (Effects of Termination), 14 (Ownership), 15 (Confidential Information), 16 (Indemnity), 17 (General) and any other provision of this Agreement which  is required to ensure that the parties fully exercise their rights and their obligations hereunder shall survive  any termination or expiration of this Agreement unless and until waived expressly in writing by the party to whom they are the

INQUIRY QUEST LICENSE AGREEMENT

 

Last updated: Nov 11, 2023

 

 

The following terms and conditions, including the additional documents incorporated by reference herein, (collectively, the “Agreement”) constitute the contract by and between Inquiry Quest, a corporation existing under the laws of Florida (“Licensor”) and the person or entity identified on the Quote as the licensee of the Software (“Licensee”). By clicking “I Agree”, you are agreeing to the terms of this Agreement and you (A) accept this Agreement and agree that Licensee is legally bound by its terms; and (B) represent and warrant that, if Licensee is a corporation, governmental organization, or other legal entity, you have the right, power, and authority to enter into this Agreement on behalf of Licensee and bind Licensee to its terms. If Licensee does not agree to the terms of this Agreement, do not click “I Agree,” or download, use or install the Software. This Agreement is effective on the date that you agree to the terms of this Agreement (the “Effective Date”).

 

  1. INTERPRETATION

 

  • Definitions

 

Capitalized terms not otherwise defined in this Agreement shall have the following meanings: “Additional Documents” has the meaning set out in Section 1.2.

Additional Licensing Terms” means those additional licensing terms incorporated by reference into this Agreement between Licensor and Licensee that are applicable to specific Software, and available at

 www.inquiryquest.com/license or as provided with the Software.

 

Affiliate” means, with respect to any person, any entity which directly or indirectly Controls or is Controlled by or is under direct or indirect common Control with the person or any entity which is directly or indirectly Controlled by an entity which Controls the person. “Control” means, with respect to any person, the right or power, directly or indirectly, to direct or cause the direction of the management and policies of such person whether through the ownership of voting security, by contract or otherwise; and the term “Controlled” shall have the same meaning.

 

Authorized User” is a unit of measurement in respect of Software license usage. An Authorized User is a unique User, who may simultaneously access any number of instances of the Software concurrently such that no other User can access and use the Software using the credentials of any other Authorized User: a User can only use the Authorized User credentials that are specific to that User as an Authorized User. Licensee must obtain separate, dedicated licenses for each Authorized User, such license being unique to that Authorized User and may not be shared or reassigned without the prior written consent  of Licensor.  For clarity, each non-individual User is also an Authorized User and therefore requires a separate,  dedicated license as if that device were an individual.

 

Borrow” is the act of removing a license from a pool of concurrent licenses for use of the Software on a specific device without access to a local network for the use by any Concurrent User on that device and which is subject to Software license usage restrictions.

 

Concurrent User” is a unit of measurement in respect of Software license usage such that a Concurrent User license restricts the maximum number of Concurrent Users that can access and use the Software at any given time. A Concurrent User is any User who is accessing the Software at any point in time. For clarity, an Authorized User accessing multiple instances of the Software only counts as one Concurrent User; and each non-individual Authorized User is also a Concurrent User and therefore requires a separate, dedicated license as if that device were an individual.

 

Channel Partner Agreement” means an agreement among Licensor and Licensee whereby Licensee is authorized to distribute the Software to additional authorized parties. A Licensee is not obligated to be a channel partner and a Channel Partner Agreement is not required under this Agreement.

 

Confidential Information” means all documents, information, technology and data disclosed or furnished in any connection with this Agreement by one Party to the other Party on or after the date of this Agreement, directly or indirectly, whether in oral, written, graphic, video, machine-readable or other form that is either marked or identified (in writing or orally) as being confidential or proprietary or that the receiving Party can reasonably conclude or ought to know is confidential or proprietary to the other Party. Confidential Information shall be deemed to include, but is not limited to, the terms and conditions of this Agreement, all software (except for the Software), documentation and all other technical and product information and documentation, trade secrets, and the whole of the concepts, processes, procedures, and know-how contained therein.

 

Documentation” means any and all user documentation applicable to the Software.

 

EMS” means the Entitlement Management System used to (i) activate licenses for use of the Software; (ii) manage license entitlements to conform with Authorized User, Concurrent User, Standalone User, and  other Software entitlement restrictions; and (iii) restrict access to Software that is not properly activated.

 

Feedback” means all feedback, ideas, comments, and suggestions submitted by Licensee to Licensor concerning the Software or any services provided by Licensor, or part thereof.

 

Inquiry Quest SUS Subscription and Support Program” means the support and maintenance services for the Software available for a Licensee enrolled in the Inquiry Quest SUS Subscription and Support Program as further discussed in section 7.1 of this Agreement.

 

Internal Business Purposes” means use of the Software solely for Licensee’s internal business needs, based on such Software’s intended functionality. Internal Business Purposes do not include use of Software to provide any kind of service, action, assistance or support to third part(ies), unless Licensee is expressly permitted to otherwise do so pursuant to a Channel Partner Agreement. The meaning of “Internal Business Purposes” may be further specified in the Quote.

 

“Internet License” is a type of license associated with the EMS through which Software licenses can be activated or through which Licensor can ensure that Licensee consumes licenses in accordance with the restrictions set out in the Agreement.

 

License Fee” means the license fees set out in the Quote(s).

 

“Network License” is a type of license permitting access to use the Software via a network server. “Party” means either Licensor or Licensee, and “Parties” means both Licensor and Licensee. “Permitted Use” has the meaning set out in Section 2.2.

Quote” means the quote provided by Licensor to Licensee, and accepted by Licensee, for Licensee’s purchase of the license for the Software granted under this Agreement together with any related services and for enrollment in the Inquiry Quest SUS Subscription and Support Program. More than one Quote may be established for Licensee. For clarity, the Quote may also include further terms and conditions applicable to the use of the Software.

 

SaaS” means having a pay as you go service to use the Software in a hosted environment without a license to the Software and which is governed by the terms of the SaaS Agreement.

 

SaaS Agreement” means those additional terms incorporated by reference into this Agreement between Licensor and Licensee that are applicable to specific Software that is provided as a SaaS, and whose terms are available at http://www.Inquiry Questgroup.com/license or as provided with the Software.

 

Software” means the software set forth in the Quote in object code format, including any Updates or Upgrades provided to Licensee pursuant to this Agreement.

 

Specifications” means the specifications for the  Software made available at the  Inquiry Quest Software Portal and,  to the extent consistent with and not limiting of the foregoing, the Documentation.

 

Standalone License” is a type of license that is locked to a single workstation. Any Authorized User may access a single instance and copy of the Software that is located on the specific device with access restricted to only Authorized Users associated with the Standalone License, but always in a manner so that no Authorized User can access and use the Software using the credentials of any other User, including other Authorized Users and whether or not the Software is licensed on a Concurrent User or other basis. Licensee must obtain sufficient Concurrent User licenses for all Authorized Users to have access to the Software subject to the Standalone License. Once a copy of the Software is dedicated to a particular device pursuant to a Standalone License, that copy cannot be reassigned to another device without the prior written consent of Licensor. For clarity, each device on which a copy of the Software is located is specific for that Standalone License only and any other device requires a separate, dedicated license.

 

Subscription License” means a license to use the Software that is not a perpetual license, but which is a term license, with all rights to the Software expiring upon the end of the Subscription Licence.

 

Update” means updates, error corrections, patches, performance improvements or enhancements, compatibility enhancements and any other adaptations or modifications to the Software made by Licensor and published by Licensor from time to time.

 

Upgrade” means any updates made to the Software which are not Updates, including development of any new branches of the source code associated with the Software.

 

User” means an individual person that is an employee (including individuals that are independent contractors engaged by Licensee to supplement its workforce) who is authorized by Licensee to use the Software in accordance with the terms of this Agreement and the Quote. Any computing device that requests the execution of or receives for execution a set of commands, procedures, or applications  from  the Software or that is otherwise managed by the Software is considered a separate User of the Software.

 

1.2          Precedence of terms

 

In the event of any conflict between or among the provisions of this Agreement, the Additional Licensing Terms, the Quote, and/or the Channel Partner Agreement (the “Additional Documents”), the document that is higher in the following list will take precedence:

 

  1. the Quote;
  1. the Additional Licensing Terms;
  1. the Channel Partner Agreement to the extent it explicitly states it takes precedence over this Agreement; and
  1. this

 

2.     SOFTWARE AND LICENSE

 

  • Software License

Licensor hereby grants to Licensee a perpetual, non-transferable, non-sub-licensable, and non-exclusive license to access, install, make backup copies of, and use, and make and install copies of, the Software  and associated Documentation solely for the Permitted Use (the “Software License”), subject to the terms and conditions of this Agreement. Documentation supplied and made available to Licensee may be used solely to install, operate, maintain, support and otherwise use the Software to the extent required for the Permitted Use. For greater certainty, this Agreement applies to any and all copies of the Software made by Licensee.

 

Despite the foregoing, for Software subject to EMS, the Licensee must activate the Software in accordance with the EMS protocols provided by Licensor which is an initial activation of the Software. The Software License above is deemed to not be granted until the Software is activated and the Licensee is deemed to have no license in the Software until activation has occurred. The Licensee may activate Licenses either through an Internet License or through a manual procedure. Further, EMS may be used in order to ensure

 

that Licensee is not consuming licenses in the Software in excess of the amounts granted.

 

Where the Software has been properly activated and consumed using EMS and a User properly Borrows Software but the device requests an EMS verification with respect to the Software License, the Software used whilst Borrowed is deemed to be activated and properly consumed where the activation request is unrelated to the requirement for initial activation of the Software but is a result of the Software not having access to either the EMS or the central server from which the Software was Borrowed.

 

Except for Standalone Licenses, all other Software Licenses shall be deemed to be Network Licenses. For both Standalone Licenses and Network Licenses, the Licensee is permitted to have copies of the Software  on individual devices. Where a Concurrent User license is provided, the act of accessing and using the Software is deemed to be consuming one of the Concurrent Licenses for the purposes of this Agreement.

 

When Software is Borrowed, the Borrowed Software is still deemed to be a part of the Network License despite the Software not being connected to a network whilst Borrowed.

 

2.2     Permitted Use

Subject to this Agreement and any applicable Additional Licensing Terms, Licensee shall be permitted to access, install, make backup copies of, and use the Software and Documentation for its Internal Business Purposes (the “Permitted Use”), provided: (a) Licensee ensures that itself and any other person usingthe Software does so in compliance with the terms of this Agreement and only on Licensee’s behalf; (b) Licensee may only use the Software up to the number of Concurrent Users and Authorized Users per the Quote; (c) Licensee has activated the Software License as necessary and (d) backup copies may only be made if: (i) Licensee is in compliance with this Agreement; (ii) if the Software has a limit on its number of Authorized Users or Concurrent users, the backup copy does not execute unless the backup Software is not able to execute (and the use of the backup Software shall expire once the primary Software instance is again available); and (iii) all copyright notices and indicators of ownership are reproduced on all copies and partial copies of the Software. For greater certainty, if Licensee has been granted additional certain rights pursuant to the Quote (e.g. distribution rights, rights to modify or support software, or right to embed software in Licensee’s solutions), “Permitted Use” shall also include the permission to exercise such  additionally granted rights only in furtherance of Licensee’s Internal Business Purpose for the specific Software referenced in the Quote.

 

2.3    Restrictions on Use

Licensee’s use of the Software is subject to the following restrictions and limitations. Licensee shall not: (a) except as otherwise expressly authorized, provide, disclose, sublicense or otherwise permit any third party to access, use, read, disseminate, transmit, download or reproduce the Software or Documentation; (b) adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Software in any manner or to any extent whatsoever, whether in whole or in part; (c) use any of the part of the Software’s components, files, modules, audio-visual content, or related licensed materials separately from that Software; (d), to the maximum extent permitted by applicable law, disassemble, decompile, reverse engineer, or otherwise in any manner deconstruct all or any part of the Software; (e) use the Software in excess of the limits for Concurrent Users or Authorized Users that Licensee has obtained  per   a Quote, or any other limitation on Licensee’s Users’ use of the Software pursuant to this Agreement  and the Additional Documents; (f) use the Software, as a “service bureau” or in a time-sharing, application service provider or other similar model to provide the benefit of the use of the Software to any person except as expressly permitted hereby; (g) copy the Software, except as expressly set out in this Agreement; (h)  use the Software in any manner that would negatively impact the commercial reputation of Licensor or Licensor’s brand; (i) resell, distribute, or repackage the Software whether in binary or source form, including in the form originally provided by Licensor to the Licensee, to any third party for any purpose (other than as otherwise specifically permitted in this Section or subject to any Channel Partner Agreement terms); (j) Borrow the Software in excess of or in a manner that would result in excess of the limits for Concurrent Users or Authorized Users that Licensee has obtained per a Quote, or any other limitation on Licensee’s Users’ use of the Software pursuant to this Agreement and the Additional Documents; and (k) use the Software in a manner that does not comply with, applicable laws, regulations and policies, or any Additional Licensing Terms, including those Additional Licensing Terms that may be referenced in a Quote.

 

2.4    Authorized Third Party Access

 Licensee may provide access to the Software to its Users, subject to the terms of this Agreement including the protection of Confidential Information, and if applicable, any Channel Partner Agreement, for the Permitted Use only. Unless expressly stated otherwise, no User shall be permitted to use the Software for its own benefit. Licensee will promptly on request notify Licensor in writing of all Users which have been provided access. Notwithstanding the foregoing, Licensee may provide access to the Software and to the data generated by the Software to third parties to    the extent such right is expressly granted to Licensee in the Additional Licensing Terms and the   third party is licensed as either a Concurrent User or Authorized User if access to and use of the Software is provided. Even if the third party only has rights to review data, generate data, and input data, the third party must still be a User of the Software and licensed

  1. Licensee remains liable to Licensor for compliance with this Agreement by all third parties, including Users, to whom it provides access to the Software or data generated by the

2.5    Updates and Upgrades

 Licensor will provide Updates to Licensee as any Updates are made generally available where the Licensee is enrolled in the Inquiry Quest SUS Subscription and Support Program at the time the Upgrade is released; but certain security Updates will be provided whether or not the Licensee is enrolled in the Inquiry Quest SUS Subscription and Support Program at the time the Update is released but solely at the Licensor’s discretion. Licensor reserves the right in its sole discretion to provide any Upgrades to Licensee and any decision by Licensor not to provide an Upgrade to Licensee shall not constitute a breach of the terms of this Agreement. Updates and Upgrades remain subject to the terms of this Agreement and any applicable Additional Licensing Terms, provided that new Additional Licensing Terms may be provided in conjunction with the Update or Upgrade. Licensee agrees to the terms of this Agreement as modified by the new Additional Licensing Terms upon installation, access or use of the Update or Upgrade.

 

2.6      Licensee Security

Licensee is solely responsible for implementing safeguards to protect the security of its own systems when accessing and using the Software, including to take precautions against viruses, worms, trojan horses and other items of a disabling or destructive nature. It is the responsibility of Licensee to be familiar with all applicable safety standards and ensure that the Software is maintained and operated by Licensee in a safe manner and suitable environment. Without limiting the foregoing, it is Licensee’s responsibility to ensure  that Users are adequately trained and comply with all laws, regulations, codes and safe practices, applicable to Licensee’s activities and its use of the Software.

 

2.7     Subscription Licenses

If the Quote states that any aspect of the Software is licensed and provided on a subscription basis then  the license rights provided for in this section 2, the License Fee obligations stated in section 3.1, and the Inquiry Quest SUS Subscription and Support Program detailed in section 7.1 in respect of the Subscription Software are modified in the following manner:

 

  1. all references to a perpetual license shall be substituted with a term license for a duration that equals the subscription license duration as stated in the Quote in respect of each Software application that is designated as being a Subscription License;
  2. the reference to the Inquiry Quest SUS Subscription and Support Program’s enrollment in a Quote is for a duration equal to the subscription term only for Software that is designated as being subject to a Subscription License; and
  3. the Fees are due in advance of the start of the Subscription

2.8     Trial License

 If the Quote states that any aspect of the Software is licensed and provided on a trial basis (all such Software being “Trial Software”), then the license rights provided for in this section 2, the License Fee obligations stated in section 3.1, and the Inquiry Quest SUS Subscription and Support Program detailed in section 7.1 in respect of the Trial Software are modified in the following manner:

 

  1. all references to a perpetual license shall be substituted with a term license for a duration that equals the trial  license duration  as stated in the Quote in respect of  each Trial Software  In accordance  with the terms of a Quote or where no terms are provided for in a    Quote, then as provided for in this Agreement or any applicable Additional Licensing Terms, a Licensee may switch to a regular license by paying the applicable License Fee at which time these Trial Software license terms will expire and will immediately be replaced by the Software License (such that the Trial Software will become “Software” for the purposes of this Agreement) unaffected by the terms of this section 2.8.
  1. all references to back up copies will not be permitted during the Trial Software license term.
  1. the reference to the License Fee in section 3.1 of this Agreement will only be for Software that is not the Trial Software and License Fees in respect of Trial Software will only be paid if a switch is made and the Trial Software license expires and is replaced by a Software License as contemplated in subsection 2.8(a)
  1. the reference to the Inquiry Quest SUS Subscription and Support Program’s enrollment in a Quote is only for Software and is not for the Trial Software. The term and the requirements associated with the Inquiry Quest SUS Subscription and Support Program enrollment in section 7.1 of this Agreement will apply to the Trial Software when the Trial Software license terms expire and is replaced by the Software   License as contemplated in subsection 2.8(a)

2.9    Proof of Concept License

 If the Quote states that any  aspect of the Software is  licensed and provided on a Proof of Concept basis  (or “POC”) (all such Software being “POC Software”), then the license rights provided for in this section 2, the License Fee obligations stated in section 3.1, and the Inquiry Quest SUS Subscription and Support Program detailed in section 7.1 in respect of the POC Software are modified in the following manner:

 

  1. all references to a perpetual license shall be substituted with a term license for a duration that equals the POC license duration as stated in the Quote in respect of each POC Software application. In accordance with the terms of a Quote or where no terms are provided for in a Quote, then as provided for in this Agreement or any applicable Additional Licensing Terms, a Licensee may switch to a regular license by paying the applicable License Fee at which time these POC Software license terms will expire and will immediately be replaced by the Software License (such that the POC Software will become “Software” for the purposes of this Agreement)   unaffected by the terms of this section 9.
  1. all references to back up copies will not be permitted during the POC Software license term.
  1. the reference to the License Fee in section 3.1 of this Agreement will only be for Software that is not the POC Software and License Fees in respect of POC Software will only be paid if a switch is made and the POC Software license expires and is replaced by a Software License as contemplated in subsection 2.9(a)
  1. the reference to the Inquiry Quest SUS Subscription and Support Program’s enrollment in a Quote is only for the POC Software unless the Quote states otherwise. The term and the requirements associated with the Inquiry Quest SUS Subscription and Support Program enrollment in section 7.1 of this Agreement will apply when the POC  Software  license  terms  expire  and  is  replaced  by  the  Software  License as contemplated in subsection 2.9(a) above. The payment of any associated fees for the Inquiry Quest SUS Subscription and Support Program for POC Software will be stated in the Quote, otherwise no fees will

2.10    Free of Charge License

 If the Quote states that any aspect of the Software is licensed and provided on a Free of Charge basis (or “FOC”) (all such Software being “FOC Software”), then the license rights provided for in this section 2, the License Fee obligations stated in section 3.1, and the Inquiry Quest SUS Subscription and Support Program detailed in section 7.1 in respect of the FOC Software are modified in the following manner:

 

  1. all references to a perpetual license shall be substituted with a term license for a duration that equals the FOC Software license duration as stated in the Quote in respect of each FOC Software application or where no term duration is stated in the Quote, then the license term shall be for one
    • In accordance with the terms of a Quote or where no terms are provided for in a Quote, then as provided for in this Agreement or any applicable Additional Licensing Terms, a Licensee may switch to a regular license by paying the applicable License Fee at which time these FOC Software license terms will expire and will immediately be replaced by the Software License (such that the FOC Software will become “Software” for the purposes of this Agreement) unaffected by the terms of this section 2.10. Please note that not all FOC Software can be switched to a regular license format.
  1. the reference to the License Fee in section 3.1 of this Agreement will only be for Software that is not the FOC Software and there are no License Fees in respect of FOC
  1. the reference to the Inquiry Quest SUS Subscription and Support Program’s enrollment in a Quote is only for Software and is not for the FOC Software unless the Quote explicitly names the FOC Software. If the Quote provides for Inquiry Quest SUS Subscription and Support Program’s enrollment in relation to any   FOC Software application products, then the Inquiry Quest SUS Subscription and Support Program shall apply   to such FOC Software application products despite anything in this Agreement to the contrary. The term and the requirements associated with the Inquiry Quest SUS Subscription and Support Program    enrollment in section 7.1 of this Agreement will apply to the FOC Software when the FOC Software license terms expire and is replaced by the Software License as contemplated in subsection 2.10(a) above.

2.11      Academic License

 If the Quote states that any aspect of the Software is licensed and provided as an Academic License (all such Software being “Academic Software”), then the license rights provided for in this section 2, the License Fee obligations stated in section 3.1, and the Inquiry Quest SUS Subscription and Support Program detailed in section

  • in respect of the Academic Software are modified in the following
  1. all references to a perpetual license shall be substituted with a term license for a duration that equals the license term (which may equate to a particular academic term) as stated in the Quote in respect of each Academic Software application or where no term duration is stated in the Quote, then the license term shall be for the then current academic year (ending on the 31st day of August  of the applicable year).
  1. Unless the Quote states otherwise, the license shall be an enterprise license for the use by the academic institution stated in the Quote and the following license restrictions may apply: The Academic Software will be located on either a server on premise at the academic institution or in a cloud environment that is controlled by the academic institution; no other copies of the Academic Software are permitted to be located on laptops, devices, or other hardware (such as workstations); and only one copy of each Academic Software product is permitted on the server or cloud environment, as applicable, under the Academic License. Otherwise, the Quote may state additional User and Concurrent User limits together with permission for the Licensee to have additional copies of the Academic Software located on Licensee’s laptops, devices, or other hardware but subject always to the limitations regarding use, but in no event can the number of copies at any one time exceed
  1. Licensee shall not use the Academic Software for any purpose other than for education, training or undergraduate academic research activities. The Academic Software cannot be used for graduate academic research activities or for academic activities not related to education, training and undergraduate academic research
  1. Except as permitted in (b) above, Licensee shall not copy the Academic Software, nor shall Licensee distribute, transfer, share, loan, or permit access via a file sharing or other service bureau use, or assign the Academic Software without specific permission from
  1. If Licensee is the academic institution using the Academic Software for teaching purposes, Licensee will manage all student licenses through a license server provided by Licensor in accordance with guidelines provided by Licensor. Licensee agrees to provide reports describing the number of licenses Licensee has issued in each period upon Licensor’s request.
  1. the reference to the License Fee in section 3.1 of this Agreement will only be for Software that is not the Academic Software and there are no License Fees in respect of Academic
  1. the reference to the Inquiry Quest SUS Subscription and Support Program’s enrollment in a Quote is only for Software and is not for the Academic Software unless the Quote explicitly names the Academic Software. The Licensee may still contact the Licensor in relation to submitting a support ticket, but the Licensor has no obligation to provide any resolution to the tickets except where the Licensee has paid for Inquiry Quest SUS Subscription and Support
  1. For the purposes of an Academic Software license, the definition of a User shall include those students, teaching assistants and the professor (or others who are used to teach the applicable course) that are enrolled in education classes at the academic institution listed in the Quote. Where the academic institution provides both on site and remote/off site classes, additional licenses may be

2.12    Warranties

 In respect of the Trial Software, the POC Software, FOC Software and the Academic Software, the Licensor shall only supply the warranty in section 9.4 and not the warranties listed in section 9.1 or anywhere else in this Agreement.

 

2.13    SaaS

 Where the Quote states that an aspect of the Software is provided to the Licensee on a SaaS basis, then those aspects of the Software are not licensed to the Licensee but rather are provided to the Licensee to use on a pay as you go services basis and are subject to the terms of the SaaS Agreement. To the extent that the terms of the SaaS Agreement modify the terms of this Agreement, the terms of the SaaS Agreement shall apply but only to the Software that is subject to the SaaS designation. Otherwise, all of the terms of  this Agreement shall apply and, if necessary, are incorporated by reference into the SaaS Agreement.

 

 

3.      FEES AND PAYMENT

 

  • Payment of Fees

In consideration of the Software License, Licensee will pay the License Fee to Licensor in accordance with the terms of the Quote. Licensee agrees to pay any and all additional fees, including License Fees, associated with any use of the Software in excess of the use authorized per the Quote. In consideration of the provision of any services associated with the Inquiry Quest SUS Subscription and Support Program Licensee shall pay the associated fees as set out in the Quote. If Licensee fails to make any payment when due, in addition to all other remedies that may be available: (a) Licensor may charge interest on the past due amount at the rate of 1% calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (b) Licensee shall reimburse Licensor for all costs incurred by Licensor in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days following written notice thereof, Licensor may prohibit access to the Software until all past due amounts and interest thereon have been paid, without incurring any obligation or  liability  to Licensee or any other person by reason of such prohibition of access to the Software.

 

3.2    Invoicing

Licensor shall provide Licensee with an electronic invoice detailing payment due to Licensor. Upon the receipt of Licensor invoice sent to Licensee, Licensee shall pay Licensor the Licensee Fee by bank transfer within thirty (30) calendar days upon the receipt of a valid invoice. Licensor will not provide credits or refunds for Licensee Fees paid except as expressly set out in this Agreement.

 

3.3    Taxes

The License Fee is exclusive of any applicable sales, use, services, consumption, excise and other transaction-based taxes which may be assessed by any governmental body, agency or taxing authority (including at the federal, provincial, county and/or local level). Licensee is responsible for all goods and services, harmonized sale, sale, service, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial or territorial governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.

 

 

4.      LICENSE AUDIT

 

  • Audit

 Licensee agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of one (1) year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder, including compliance with limits on the number of Authorized Users and  Concurrent Users. Licensor  may, at its own expense, on thirty (30) days’ written notice, periodically inspect and audit Licensee’s records with respect to matters covered by this Agreement, in addition to all sites and environments  in which Licensee  or Users use the Software, and in accordance with Government security requirements, provided that if such inspection and audit reveals that Licensee has underpaid Licensor with respect to any amounts due and payable during the Term, Licensee promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 3.1. Licensee, at Licensor’s sole discretion, may be required to pay for the costs of the audit if the audit determines that Licensee has underpaid for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of one (1) year after the termination or expiration of this Agreement. Otherwise, if the Software is subject to EMS and the EMS is continuing to function according to the Licensor’s terms, the Licensee shall be deemed to be in conformance with its Software Licenses.

 

Otherwise, if the Software is subject to EMS, consumption of a license after the initial activation shall be confirmation by the Licensee that its ongoing use of the Software is still in conformance with the number of Authorized User and Concurrent User restrictions set out in the Quote.

 

4.2    Report

 Licensee will, for all Software at all sites and for all environments, create, retain, and each year, provide to Licensor upon Licensor providing 30 days’ written notice to Licensee, an accurate report in a format requested by Licensor outlining Software usage, any supporting documentation, and any other relevant information.

 

 

5.      INTELLECTUAL PROPERTY

 

  • Ownership

Licensee acknowledges that all right, title and interest in and to the Software and Documentation are the sole and exclusive property of Licensor. Licensor reserves all rights not expressly granted to Licensee hereunder, and for greater certainty, Licensor shall retain all intellectual property rights in and to the Software.

 

5.2  Feedback

Licensee may provide Feedback to Licensor on a voluntary basis. Notwithstanding any other provision of this Agreement, Feedback is subject to the following terms: (a) Licensor may use such Feedback and incorporate it in Licensor’s products, technologies, and services without any obligations or restrictions; (b) Licensee waives all rights it or its representatives have or may have, including all intellectual property rights, in and to Feedback, and hereby assigns to Licensor all of Licensee’s rights in and to Feedback and will cause its representatives to assign all of such persons’ rights to Licensor and to waive all moral or similar rights that its representatives have to Licensor. Licensee will execute and cause to be executed all documents necessary to assign such rights. Licensee is not entitled to any compensation or reimbursement of any kind under any circumstances for any Feedback. Any improvements developed by Licensor based  on such Feedback, and any associated intellectual property rights, shall also be the exclusive property of Licensor.

 

5.3     Intellectual Property Indemnification

 

  1. Licensor shall defend Licensee from any claims asserted against Licensee that the Software infringes a third party’s patent or copyright and pay to Licensee the settlement fee, or the amounts awarded by a court against Licensee, provided that Licensee promptly notifies Licensor in writing of such claim, cooperates with Licensor, takes reasonable steps to mitigate the claim, and allows Licensor sole authority to control the defense and settlement of such
  1. If such a claim is made or appears possible, Licensee agrees to permit Licensor, at Licensor’s sole discretion, to (A) modify or replace the Software, or component or part thereof, to make it non- infringing, or (B) obtain the right for Licensee to continue use. If Licensor determines that none of these alternatives is reasonably available, Licensor may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to
  1. The indemnity provided under Section 5.3(a) will not apply to the extent that the alleged infringement arises from: (i) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Licensor or authorized by Licensor in writing; (ii) modifications to the Software not made by Licensor; or (iii) use of any version other than the most current version of the Software or Documentation delivered to

 

 

6.     CONFIDENTIALITY

 

  • Use of Confidential Information

 Licensee shall be permitted to use the Confidential Information of Licensor solely, and to the extent necessary, for its Internal Business Purposes in connection with its operation and use of the Software as permitted by this Agreement. Licensor shall be permitted to use the Confidential Information of Licensee solely and to the extent necessary for its Internal Business Purposes in connection with the installation, provision and support of the Software and its activities related thereto and as otherwise set out in this Agreement. Each Party receiving Confidential Information (“Recipient”) of the other Party (“Discloser”)  shall hold in confidence and shall protect (using efforts and measures it uses to protect Recipient’s own confidential information of a similar nature, but in any event reasonable efforts and measures) the Confidential Information of the Discloser from harm, loss, theft, reproduction and unauthorized access while in its possession or control. Recipient acknowledges and agrees that the Confidential Information it may receive from the Discloser is the sole and exclusive property of Discloser (and/or its suppliers and licensors) and is highly valuable, confidential and material to the interests, business and affairs of Discloser, and that disclosure thereof would be detrimental to the interests, business and affairs of Discloser.

 

 

6.2          Exceptions; Permitted Disclosure

 Recipient shall be permitted to disclose relevant aspects of the other Discloser’s Confidential Information    to its officers, directors, employees, agents and professional advisors to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations or the exercise of any rights or privileges granted under this Agreement; provided, however, that prior to such disclosure such Discloser shall inform such persons and parties of the confidential nature of the Confidential Information. Recipient shall, subject to the terms hereof, be fully responsible for ensuring that any such persons to whom it

 

discloses Discloser’s Confidential Information comply with the confidentiality obligations contained in this Agreement and Recipient shall be liable for any breach of this Agreement by such persons. Recipient may disclose the Confidential Information of Discloser that: (a) is either prior to furnishing the Confidential Information or thereafter becomes known to the public without fault or breach of Recipient; (b) Recipient obtains from a third party without restriction on disclosure and without breach by such third party of a non- disclosure obligation to Discloser; (c) is already known to Recipient at the time of disclosure not otherwise subject to other confidentiality provisions, as proven by documentary evidence; and (d) is independently developed by Recipient, without any reference or use of any of Discloser’s Confidential Information. The obligations of confidentiality contained in this Agreement shall not  restrict any disclosure by Recipient to   the extent Recipient is required to disclose the Confidential information by applicable law or a court of competent jurisdiction; provided, however, that it shall not make any such disclosure without first notifying Discloser and allowing Discloser a reasonable opportunity to seek injunctive relief from (or a  protective order with respect to) the obligation to make such disclosure. In the event that such protective order or other remedy is not obtained, Recipient shall use reasonable efforts to furnish only that portion of the Confidential Information which it is legally required to provide.

 

6.3   Unauthorized Disclosure

Recipient shall notify Discloser promptly upon discovery of any unauthorized use or disclosure of the Discloser’s Confidential Information, and will cooperate with the Discloser in every reasonable way to help regain possession of such Confidential Information and to prevent its further unauthorized use or disclosure.

 

 

6.4   Survival and Return of Information

 The obligations of confidentiality in this Agreement shall be effective throughout the Term (defined below) and, notwithstanding the return of any Confidential Information or any other event, shall continue  in full  force and effect following its termination. Without prejudice to any other rights provided herein, upon termination of this Agreement, each Party shall return to the other all Confidential Information of such other Party in its possession or control, or destroy such Confidential Information, including any copies or reproductions thereof, provided, however, each Discloser recognizes that despite such attempts to destroy such Confidential Information, electronic representations of Confidential Information may continue to exist, subject to the terms hereof, in the Recipient’s data system backup applications, or similar storage media.

 

 

 

7.    SUPPORT

 

  • Scope of Support; Access

The Licensee may enroll in the Licensor’s Inquiry Quest SUS Subscription and Support Program. The Licensee is obligated to purchase its enrollment in the Inquiry Quest SUS Subscription and Support Program for the first 12 months of any license in the Software. The enrollment in the Inquiry Quest SUS Subscription and Support Program will be stated in a Quote and which will also delineate the subscription term and may delineate whether the subscription   is a renewal or a reinstatement. The fees associated with any renewal or reinstatement will be determined solely and entirely by in accordance with the GSA Schedule Pricelist.

 

While enrolled in the Inquiry Quest SUS Subscription and Support Program, the Licensor may provide Licensee with assistance or support in respect of the Software, which may involve: a) Licensor remotely accessing Licensee’s systems; or b) Licensee providing its information or system data to Licensor.  Licensee authorizes Licensor, its Affiliates and their respective subcontractors to use information from and about Licensee relating to errors and problems to improve its products and services, and to provide support.

 

Additional information related to the Inquiry Quest SUS Subscription and Support Program is located on the following website: https://www.inquiryquest.com/support which may also include additional terms, restrictions, and requirements with which the Licensee is obligated to comply.

 

7.2    Licensee Data

Licensee is responsible for: a) the selection and implementation of procedures and controls for access, use, and transmission of any data provided to Licensor (including personally identifiable information); b) the content of such data or associated database; and c) the backup or recovery of any such data or associated database.

 

Licensee will not provide to Licensor, directly or indirectly, any personally identifiable information in any form. Licensee is responsible for all costs and expenses Licensor may reasonably incur as a result of any data or information Licensee mistakenly provides to Licensor, or any loss, destruction or disclosure of such data or information by Licensor, including such costs and expense arising out of a third-party claim.

 

 

8.   TERM AND TERMINATION

 

  • Term

The term of this Agreement and the Software License shall commence on the Effective Date and shall remain in effect for the term set forth on the Quote, or until the termination of this Agreement pursuant to  this Agreement (the “Term”).

 

 

8.2    Termination

 Either Party shall have the right to terminate this Agreement if:

 

  1. the other Party breaches any material provision of this Agreement, including any failure to pay the License Fee when due, and such breach continues un-remedied for a period of thirty (30) days after written notice thereof; or
  1. the other Party becomes insolvent, files a voluntary petition in bankruptcy or insolvency or a petition for reorganization under any bankruptcy law, the other Party consents to any involuntary petition in bankruptcy or if a receiving order is given against the other Party under any bankruptcy law, or an order, judgment or decree is entered by any court of competent jurisdiction, upon the application of a creditor, receiver, trustee or liquidator of all or a substantial part of the other Party’s assets, and   the same has not been discharged or terminated without prejudice to the non-defaulting Party’s  rights under this Agreement within thirty (30) calendar

 

8.3    Effect of Termination

In the event of the expiration or termination of this Agreement the Software License will terminate, and without limiting Licensee’s obligations under Section 6, Licensee shall cease using and delete, destroy, uninstall, and return all copies of the Software and Documentation, as applicable, and certify in writing to  the Licensor that the Software and Documentation has been deleted, destroyed, uninstalled and returned, as applicable. No expiration or termination will affect Licensee’s obligation to pay all License Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.

 

 

9.     REPRESENTATIONS, WARRANTIES, INDEMNITIES AND LIABILITY

 

  • Representations and Warranties of Licensor

For a period of 1 month following the Effective Date or such other period of time if specified in the applicable Additional Licensing Terms, Licensor warrants that the Software, when used in accordance with the Documentation, will perform materially as described in the

  1. During the Warranty Period, Licensor will make available to Licensee Licensor’s support database available at inquiryquest.com.

 

9.2     Representations and Warranties of Licensee

 Licensee represents and warrants to Licensor that:

 

  1. it will not make any false or misleading representations regarding the Software or Documentation, its use thereof, or the relationship of the Parties to any third parties; and
  1. it agrees to, and assumes all responsibility for complying with, any applicable laws, regulations and policies; and

9.3

c)

it has obtained or will obtain any consents, permissions, or licenses required to enable its lawful use of the Software.

 

 

Risk and Indemnity

 

a)

LICENSEE CONFIRMS THAT IT HAS THE SOLE RESPONSIBILITY FOR ALL USE OF THE

  

SOFTWARE, FOR ANY PRODUCTS OR SERVICES THAT USE THE SOFTWARE, AND ANY

  

USE OF SUCH PRODUCTS OR SERVICES BY OTHERS, INCLUDING BUT NOT LIMITED TO

  

THE RESPONSIBILITY TO ASSESS WHETHER THE SOFTWARE AND USE THEREOF IS

  

APPROPRIATE FOR LICENSEE’S INTENDED PURPOSES, AND CONSIDERING THE RISKS ASSOCIATED WITH THE SOFTWARE AND USE THEREOF.

 

b)

Licensee agrees to indemnify, hold harmless, and, upon Licensor’s request, defend Licensor and

  

its Affiliates and their respective contractors, licensors and agents and all such person’s officers,

  

directors and employees, from and against all third party claims, actions and demands, and all

  

resulting liabilities, damages and losses of any type, expenses (including reasonable legal fees),

  

settlements, or judgments suffered or incurred by such parties to the extent that they result from or

  

arise out of the failure of Licensee to comply with any applicable laws, including applicable export

  

laws and privacy laws.

9.4

 

No Warranties

EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, THE SOFTWARE, THE Inquiry Quest SUS SUBSCRIPTION AND SUPPORT PROGRAM, AND DOCUMENTATION ARE PROVIDED TO LICENSEE ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, AND LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS CONCERNING THE SOFTWARE, THE Inquiry Quest SUS SUBSCRIPTION AND SUPPORT PROGRAM, AND DOCUMENTATION AND THEIR RESPECTIVE USE, WHETHER EXPRESS OR IMPLIED OR STATUTORY OR OTHERWISE ARISING IN LAW (INCLUDING DURING THE COURSE OF DEALING, USAGE OR TRADE) AND WHETHER ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF: (A) DESIGN, (B) MERCHANTABILITY, (C) FITNESS FOR ANY PARTICULAR PURPOSE, (D) NON-INFRINGEMENT, (E) PERFORMANCE, INCLUDING THAT THE SOFTWARE IS ACCURATE, ERROR FREE, VIRUS FREE OR SECURE, OR THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED, (F) ACHIEVING ANY INTENDED RESULT, (G) BEING COMPATIBLE OR WORKING WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, AND (H) COMPLIANCE WITH STANDARDS OR LAWS. LICENSEE CONFIRMS THAT IT HAS THE SOLE RESPONSIBILITY FOR ALL USE OF THE SOFTWARE, FOR ANY PRODUCTS OR SERVICES THAT USE THE SOFTWARE, AND FOR ALL DECISIONS TAKEN FROM SUCH USE. LICENSEE ASSUMES ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM LICENSEE’S USE OF THE SOFTWARE OR FROM USE OF THE SOFTWARE BY USERS OF LICENSEE.

 

9.5     Separately Licensed Code

 In using the Software, Licensee may (or may not) be provided and may (or may not) use, certain third-party code. ANY THIRD-PARTY CODE PROVIDED AS PART OF OR WITH THE SOFTWARE IS PROVIDED  TO LICENSEE ON AN “AS-IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, AND LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS CONCERNING THE THIRD-PARTY-CODE AND THEIR USE, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF: (A) DESIGN,

(B)  MERCHANTABILITY, (C)  FITNESS  FOR  ANY PARTICULAR PURPOSE, (D) NON-INFRINGEMENT,

(E) SUBJECT TO RIGHTS OF USE OR DISTRIBUTION PERMITTING A PARTICULAR USE OR DISTRIBUTION MODEL; (F) PERFORMANCE, INCLUDING THAT THE THIRD-PARTY CODE IS ACCURATE, ERROR FREE, VIRUS FREE OR SECURE, OR THAT THE THIRD-PARTY CODE WILL OPERATE UNINTERRUPTED, (G) ACHIEVING ANY INTENDED RESULT, (H) BEING COMPATIBLE OR WORKING WITH THE SOFTWARE, ANY THIRD-PARTY CODE, SYSTEM OR OTHER SERVICES, (I) BEING COMPLIANT OR PERFORMING AS MATERIALLY DESCRIBED IN ANY RELEVANT DOCUMENTATION OR SPECIFICATIONS, AND (J) COMPLIANCE WITH STANDARDS OR LAWS. LICENSEE CONFIRMS THAT IT HAS THE SOLE RESPONSIBILITY FOR ALL USE OF THE THIRD- PARTY CODE, FOR ANY PRODUCTS OR SERVICES THAT USE THE THIRD-PARTY CODE, AND FOR

 

ALL DECISIONS TAKEN FROM SUCH USE. LICENSEE ASSUMES ALL RISK FOR ALL  DAMAGES THAT MAY RESULT FROM LICENSEE’S USE OF THE THIRD-PARTY CODE OR FROM USE OF THE THIRD-PARTY CODE BY USERS OF LICENSEE. THIS SECTION 9.5 SHALL PREVAIL NOTWITHSTANDING ANY TERMS OF THIRD-PARTY LICENSE AGREEMENTS RELATING TO SUCH THIRD-PARTY CODE, THIS AGREEMENT AND ANY OTHER AGREEMENT BETWEEN LICENSOR AND LICENSEE.

 

9.6     Limitation of Liability

 EXCEPT FOR INFRINGEMENT CLAIMS DESCRIBED IN SECTION 5.3, LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING IN RESPECT OF LOST PROFIT OR REVENUE OR OPPORTUNITY, EXPECTED SAVINGS OR ANY OTHER ECONOMIC CONSEQUENTIAL LOSS OR DAMAGE) OR ANY LOSS OF, OR DAMAGE TO, DATA, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT LICENSOR IS FOUND TO BE LIABLE TO LICENSEE FOR ANY REASON, LICENSOR’ LIABILITY SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY LICENSEE AND SHALL NOT EXCEED THE LICENSE FEE PAID BY

LICENSEE. The foregoing limitations and exclusions of liability shall apply in respect of any expense, damage, loss, injury, or liability of any kind, regardless of the form of  action or theory of liability (including  for breach of contract, tort, negligence, strict liability, by statute or otherwise) and shall survive a fundamental breach or breaches or the failure of the essential purpose of this Agreement or of any remedy contained herein.

 

 

 

10.    GENERAL

 

  • Interpretation

In this Agreement: (a) words denoting the singular include the plural and vice versa and words  denoting  any gender include all genders; (b) all usage of the words “including” or “include” or the phrase “e.g.” shall mean “including, without limitation”; (c) any reference to a statute shall mean the statute in force as at the date hereof, together with all regulations promulgated thereunder, as the same may be amended, re- enacted, consolidated and/or replaced from time to time, and any successor statute thereto, unless otherwise expressly provided; (d) the division of the Agreement into sections and the insertion of headings  is for convenience of reference only and shall not affect the construction or interpretation; (e) words or abbreviations which have well-known or trade meanings are used herein in accordance with their  recognized meanings; (f) the Parties agree that the Agreement shall not be construed in favour of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of the Agreement.

 

 

10.2    Entire Agreement

 This Agreement, including the Quote, any Additional Licensing Terms and the Channel Partner Agreement, constitute the entire agreement between the Parties pertaining to all the matters herein and supersedes all prior agreements, proposals, proof of concepts, understandings, letters of intent, negotiations and discussions between the Parties hereto, whether oral or written and may only be amended or modified by written agreement executed by the authorized representatives of the Parties hereto.

 

 

10.3        Governing Law

 This Agreement shall be governed by, construed and interpreted in accordance with the laws of the province, state, or country, as applicable, in which the Licensee is provided a license (the “Licensee Territory”). The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario and the applicable courts in the Licensee Territory, at the discretion of the party filing a claim in relation to this Agreement.

 

 

10.4        Waiver

No delay or omission by a Party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other Party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the Party waiving its rights.

 

 

10.5        Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law. In such instance, the Parties shall use their best efforts to replace the invalid provision(s) with legally valid provisions having an economic effect as close as possible to the original intent of the Parties.

 

 

10.6        Assignment; Subcontracting

This Agreement shall will enure to the benefit of and be binding on both Parties to this Agreement, their successors and permitted assigns. This Agreement may not be assigned by Licensee without prior written consent of Licensor. Licensor may assign this Agreement without prior consent of Licensee at any time. Licensor may subcontract the performance of its obligations and any services under this Agreement provided Licensor shall remain responsible for ensuring  all subcontractors’ compliance with the terms of  this Agreement.

 

 

10.7        Survival

Sections 2, 3, 5.2, 6, 8.3, 9 and 10 shall survive any expiration or termination of this Agreement. In additional to the foregoing Sections, any other terms of this Agreement which by their nature shall extend beyond expiration or termination of this Agreement shall remain in effect until fulfilled and shall bind Parties.

 

 

10.8        Force Majeure

Neither Party shall be liable for delays in or for failures to perform hereunder (other than a payment obligation) due to causes beyond its reasonable control, including acts of God, acts or omissions of the  other Party or a third party, third party product or service failures, transportation delays, labour disputes, Internet or telecommunications outages, acts of civil or military authorities, fire, strikes, power, surges or outages, epidemics, pandemics, flood, earthquakes, riot, or war (“Force Majeure Event”). Each Party shall use commercially reasonable efforts to provide the other Party with notice of any such events and recommence performance as soon as is practicably possible.

 

 

10.9    Relationship of the Parties

This Agreement will not constitute or be construed as creating a partnership or joint venture between the Parties, and neither Party will be liable for any debts or obligations of the other Party. Neither Party will in any way be considered as being an agent or representative of the other Party in any dealings with any third party, and neither Party may act for, nor bind, the other Party in any such dealings.

 

 

10.10   Notice

 Any notice required or permitted hereunder shall be written in English and shall be deemed to have been given when dispatched by email,  delivered by  overnight courier or air-mailed prepaid first class registered or certified mail and addressed to the respective representatives set out in the Quote, unless otherwise designated by either Party in writing, and such notice shall be effective, if dispatched by facsimile or email  or delivered by overnight courier one (1) day after its transmission or its shipment, or shall be effective  seven (7) business days after it is deposited in the air-mail if air-mailed.