PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY QUARTZ DIGITAL MARKETING (“COMPANY”). BY EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. . BY ACCESSING, USING, OR DOWNLOADING ANY MATERIALS FROM THE SITE, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE SITE IMMEDIATELY.
1. Order Forms; Access to the Service
Upon execution, each Order Form shall be incorporated into and form a part of the Agreement. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Quartz Digital Marketing grants Customer the right and license to access and use the services specified in each Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Quartz Digital Marketing’s applicable official user documentation (the “Documentation”).
2. Use of the Services
Customer acknowledges and agrees to the following:
i. As between Quartz Digital Marketing and Customer, Customer has exclusive control and responsibility for (a) the content of all documents, data, information or other material provided, uploaded, or submitted by Customer to the Services in the course of using the Service, including Customer’s end users’ data (collectively, “Customer Data”); (b) the content, quality, and format of any documents created by Customer using the Services; and (c) the accuracy and appropriateness of all instructions given by Customer or its personnel to Quartz Digital Marketing in relation to the Customer Data and the use of the Services.
ii. In using the Services, Customer is solely responsible for ensuring that a Customer Data and information it submits or stores and all documents it creates, modifies, or stores on the Service are (a) accurate, and (b) comply with applicable law in each jurisdiction applicable to Customer, and that Customer has all necessary permissions to place such Customer Data on the Services.
iii. Quartz Digital Marketing is not a party to and shall have no liability in connection with any agreements or transactions Customer enters into with third parties related to any of the Customer Data or any documents created, modified, or stored using the Services.
iv. Certain types of documents, agreements, or contracts Customer may create using the Services may be excluded from general electronic signature laws or may have specific regulations that are applicable to them, and Customer is solely responsible for ensuring that the documents, agreements or contracts it creates or uses with the Services are appropriate for electronic signatures and abide by all applicable laws, regulations, or rules. COMPANY is not responsible or liable for any such determination or use.
v. The Services may include agreement examples, forms and other general legal information provided by Quartz Digital Marketing or third parties. However, any general legal information or sample templates provided as part of the Services are examples only, may not be suitable to Customer’s circumstances, and should not be considered to be a substitute for the advice of a lawyer or other appropriately qualified professional. Quartz Digital Marketing is not responsible for any loss, damage or cost resulting from any decisions that are made in reliance on the Services, including legal, compliance and/or risk management decisions. Customer agrees that its use the Services at its own risk in these respects.
Upon payment of any applicable fees set forth in each Order Form, Quartz Digital Marketing agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If COMPANY provides Implementation Assistance in excess of any agreed-upon hours estimate, or if COMPANY otherwise provides additional services beyond those agreed in an Order Form, Customer will pay COMPANY at its then-current hourly rates for consultation as set forth in the Order Form.
4. Support; Service Levels
Quartz Digital Marketing will provide support and uptime for the Services in accordance with (i) the support package selected by Customer on the applicable Order Form (if any) and (ii) Quartz Digital Marketing’s then-current standard Support and Availability Policy set forth the attached Quartz Digital Marketing Support and Availability Policy. The Quartz Digital Marketing’s Support and Availability Policy, effective as of [DATE] is as follows:
SUPPORT AND AVAILABILITY POLICY
Daytime 9 am-5 pm PST
Included in all plans.
Daytime 9 am-5 pm PST
Tier 2 support plan sold separately.
24/7 Slack and Phone support
Tier 1 support plan sold separately.
5. Service Updates
From time to time, Quartz Digital Marketing may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Quartz Digital Marketing shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Quartz Digital Marketing may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Quartz Digital Marketing shall use commercially reasonable efforts to give Customer thirty (30) days prior notice of any major changes.
6. Ownership; Feedback
As between the parties, Quartz Digital Marketing retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Quartz Digital Marketing for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer retains the right to its own intellectual property and Customer Data and there are no licenses granted to Quartz Digital Marketing. Customer may from time to time provide suggestions, comments or other feedback to Quartz Digital Marketing with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Quartz Digital Marketing notwithstanding anything else. Customer shall, and hereby does, grant to Quartz Digital Marketing a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Quartz Digital Marketing right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
7. Fees; Payment
Customer shall pay Quartz Digital Marketing fees for the Service as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced yearly in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due undisputed invoices are subject to interest on any outstanding balance of the lesser of 1% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on Quartz Digital Marketing net income). All undisputed Fees paid are non-refundable and are not subject to set-off.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any of its end users or any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Quartz Digital Marketing product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Quartz Digital Marketing may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data onto the Service. Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights. Quartz Digital Marketing shall not allow its subprocessors, vendors, or any third parties to access any of Customer’s Customer Data including, but not limited to, Customer’s own end user’s information.
9. Confidentiality; Customer Data; Publicity
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business that is designated as confidential or proprietary at the time of disclosure, or that due to the nature of the information the Receiving Party would understand it to be confidential information of the Disclosing Party (hereinafter referred to as “Proprietary Information” of the Disclosing Party). For clarity, Customer Data shall be considered Proprietary Information.
The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to disclose or give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement on a need-to-know basis who are subject to the same confidentiality obligations substantially similar to those set forth in this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The foregoing shall not apply to information that the Receiving Party can document (i) is or becomes (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee of the Receiving Party) generally available to the public, or (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, provided the Receiving Party complies with restrictions imposed thereon by third parties, or (iii) was rightfully disclosed to it by a third party without restriction, provided the Receiving Party complies with restrictions imposed thereon by third parties, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party by employees of the Receiving Party who have had no access to any such Proprietary Information. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the Disclosing Party to participate in the proceeding. Receiving Party shall, as soon as reasonably practical after discovery a breach of this Confidentiality section, report to the Disclosing Party within 24 hours any unauthorized use of, disclosure of, or access to the Disclosing Party’s Confidential Information, subject to any reasonable restrictions placed on the timing of such notice by a law enforcement or regulatory agency investigating the incident; and take all reasonable measures to prevent any further unauthorized disclosure or access.
Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Quartz Digital Marketing, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Quartz Digital Marketing shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Quartz Digital Marketing is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Quartz Digital Marketing’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Quartz Digital Marketing may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services and any support or consultation services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Quartz Digital Marketing’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing COMPANY’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Quartz Digital Marketing in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer or any individual. Notwithstanding anything else, Quartz Digital Marketing is permitted to disclose (including through display of Customer’s logo) that Customer is one of its customers (including in its publicity and marketing materials).
10. Term; Termination
This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms.
For each Order Form, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Order Form Term”) unless either party notices the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Quartz Digital Marketing may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Quartz Digital Marketing’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Quartz Digital Marketing shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation Quartz Digital Marketing shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Quartz Digital Marketingshall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability
Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Service (in the case of Customer as Indemnitor), or (ii) the Service (in the case of Quartz Digital Marketing as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Quartz Digital Marketing do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Quartz Digital Marketing (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Quartz Digital Marketing, (iv) combined with other products, processes or materials not provided by Quartz Digital Marketing (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith.
12. Disclaimer and Warranties
a. COMPANY DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. COMPANY DOES NOT WARRANT THAT THE SERVICES OR DOCUMENTATION ARE OR WILL BE ERROR FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE, AND ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, MISTAKES, OMISSIONS, OR INACCURACIES IN THE SERVICES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICES OR ANY CONTENT CREATED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
b. CUSTOMER WARRANTIES.
Customer warrants that (a) it is a duly formed entity (i.e., corporation or limited liability company) in good standing under the laws of the state of its incorporation or organization; (b) it is qualified to transact business in all locations where the nature of its operations requires such qualification; (c) it has full power and authority to enter into and perform this Agreement; (d) the execution and delivery of this Agreement have been duly authorized; (e) it shall employ reasonable professional standards in performance of its rights and obligations under this Agreement, and shall avoid deceptive, misleading or unethical practices that may be detrimental to the Company or the Services; (f) it will not access any information or data provided or controlled by any end user of any other Customer and will abide by and will not circumvent or otherwise disable any security or data protection measures implemented by Quartz Digital Marketing; and (g) it will not, and will not permit any third party to, upload, post, email, transmit or otherwise make available within the Services any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
13. Limitation of Liability
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS (SECTION 11), FOR LIABILITY FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR VIOLATION OF LAW, AND CONFIDENTIALITY AND DATA SECURITY OBLIGATIONS (SECTION 9), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, AND EACH PARTY’S LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED FEES PAID (OR PAYABLE) BY CUSTOMER TO COMPANY HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
This Agreement represents the entire agreement between Customer and Quartz Digital Marketing with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Quartz Digital Marketing with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Quartz Digital Marketing may utilize subcontractors in the performance of its obligations hereunder.