THIS MASTER SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION AND USE OF Q4 INC.’S (“Q4”) SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF Q4 SERVICES OR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Q4’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH Q4’S PRIOR WRITTEN CONSENT. IN ADDITION, THE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES. MOREOVER, ANY USE OF COMPETITOR CODE, THIRD PARTY CODE SNIPPETS, PIXEL TRACKING, WEB BEACONS, OR ANY OTHER SIMILAR TECHNOLOGY OR APPLICATIONS ON OR IN CONJUNCTION WITH THE Q4 SERVICES IS STRICTLY PROHIBITED.
This Agreement was last updated on April 5, 2024. It is effective between Customer and Q4 as of the date of Customer’s accepting this Agreement. Q4 reserves the right, at any time, to update the Agreement, at its sole discretion. If Q4 does so, it will post the modified Agreement at www.q4inc.com/MasterServicesAgreement.
1.0 DEFINITIONS
Certain capitalized terms, if not otherwise defined, shall have the meanings set forth below in this Section 1.
1.1 “Affiliate(s)” means any corporation, partnership or other entity that is under the direct or indirect control of the applicable Party or its respective successors and assigns. For purposes of the foregoing, “control” shall exist whenever there is an ownership, profits, voting, or similar interest (including any right or option to obtain such an interest) representing at least 51% of the total interests of the pertinent entity then outstanding.
1.2 “Agreement” means this Master Subscription Agreement
1.3 “Content” means any ideas, inventions, tools, routines, subroutines, processes, methods, designs, and know-how, whether or not copyrightable or patentable, created or developed by Q4 in the provisioning of the Services.
1.4 “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
1.5 “Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content.
1.6 “Documentation” shall mean the applicable Service’s Security and Acceptable Use Policies and Service Levels.
1.7 “Malicious Code” means code, files scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.
1.8 “Non-Q4 Application” means a Customer application or third-party application provided, selected, or created by Customer that integrates with the Services and that is subject to assessment, evaluation and acceptance by Q4, which may be reasonably withheld.
1.9 “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and Q4 or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.10 “Q4” means the Q4 Inc. company described in the “Q4 Contracting Entity, Notices, and Governing Law” section below.
1.11 “Services” means services Q4 offers on a subscription basis, including platform, software, communication, data, and intelligence services. Specific services may be more fully described in any applicable Order Form.
1.12 “User” shall mean, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Q4 with charge, for whom a Service has been provisioned), and to whom Customer has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors, and agents of Customer.
2.0 Q4 RESPONSIBILITIES
2.1 Provision of Purchased Services. Q4 will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide Q4 maintenance and support for the purchased Services to Customer pursuant to the applicable Order Form, (c) use commercially reasonable efforts to make the online purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Q4 shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Q4’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Q4 employees), Internet or cloud service provider failure or delay, denial of service attack.
If the Customer is purchasing website building and hosting services, upon making the Services and Content available to the Customer, Q4 shall maintain a standby-ready obligation and be available to host any such websites for any such Customer until the end of the Term, unless otherwise agreed upon. Furthermore, The Customer shall have sixty (60) days to go-live with any website/website Services made available by Q4. Failure to go-live within this timeframe (“Go-Live Failure”) shall be deemed as an acceptance of the delivery of Services by the Customer.
2.2 Protection of Customer Data. Q4 will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures taken for the prevention of unauthorized access to or disclosure of Customer Data.
2.3 Q4 Personnel. Q4 will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Q4’s obligations under this Agreement, except as otherwise specified in this Agreement.
3.0 USE OF SERVICES AND CONTENT
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form , (b) subscriptions for purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Q4 regarding future functionality or features.
3.2 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality, and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-Q4 Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Q4 promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, and the Q4 Acceptable Use Policy, Order Forms, and applicable laws and government regulations, and comply with terms of service of any Non-Q4 Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in Q4’s judgment threatens the security, integrity, or availability of Q4’s Services, may result in Q4’s immediate suspension of the Services, however, Q4 will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.3 Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Q4 Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Q4 Application to store or transmit Malicious Code, interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use any Services or Content in a way that circumvents a contractual usage limit or restriction, or use any Services to access or use any of Q4’s intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, function or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
4.0 FEES AND PAYMENTS
4.1 Fees Payable. Customer agrees to pay the amounts specified in an applicable Order Form. If no payment terms are specified in the applicable Order Form, fees and other charges shall be due and payable by the Customer within thirty (30) days of the date of Q4’s invoice. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual use, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2 Invoicing and Payment. Q4 shall invoice Customer in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Q4 and notifying Q4 of any changes to such information.
4.3 Overdue Charges. If any invoiced amount is not received by Q4 by the due date, then without limiting Q4’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Q4 may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “invoicing and Payment” section above.
4.4 Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, Q4 may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.
4.5 Payment Disputes. Q4 will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.6 Taxes. Q4’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Q4 has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Q4 will invoice Customer and Customer will pay that amount unless Customer provides Q4 with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Q4 is solely responsible for taxes assessable against it based on its income, property and employees.
5.0 PROPRIETARY RIGHTS AND LICENSES
5.1 Reservation of Rights. Unless otherwise specified in an applicable Order Form, subject to the limited rights expressly granted hereunder, Q4, its Affiliates, its licensors, data and content providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 License to Access and Use Q4 Services and Content. Q4 grants to Customer the right to access and use applicable Services and Content subject to the terms of applicable Order Forms, this Agreement, applicable attached addenda, and the Documentation.
5.3 License by Customer to Q4. Customer grants Q4, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Q4 Application and program code created by or for Customer using a Service or for use by Customer with their Services, and Customer Data, each as appropriate for Q4 to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement.
5.4 License by Customer to Use Feedback. Customer grants to Q4 and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users relating to the operation of Q4’s or its Affiliates’ services.
5.5 Consent to Use and Maintain Data. Subject to Section 2.2 of this Agreement, Customer hereby agrees that Q4 may compile, collect, copy, modify, publish and use anonymous and aggregate data generated or based on Customer’s data and/or Customer’s use of its services, for analytical, statistical, benchmarking and business purposes. Q4 shall own the aggregate statistical data generated hereunder, provided that any such data shall contain no reference to and shall not be attributable to the Customer or any other party.
6.0 CONFIDENTIALITY
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Q4 includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Q4 services.
6.2 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party shall have access to Confidential Information. Both Parties agree that, as between the Parties, Confidential Information is owned by the Disclosing Party.
6.3 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Q4 may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Q4 Application Provider to the extent necessary to perform Q4’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7.0 REPRESENTATION, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS
7.1 Representations. Each Party represents that it has the legal power and authority to enter into this Agreement, any applicable Order Forms.
7.2 Q4 Warranties. Q4 warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, (b) Q4 will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to any integration with a Non-Q4 Application, Q4 will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.4 EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THIS AGREEMENT, THE Q4 SERVICES AND ANY OTHER MATERIALS, SOFTWARE, DATA, AND/OR SERVICES PROVIDED BY Q4 ARE PROVIDED “AS IS” AND Q4 EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, ACCURACY OF DATA OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN. NO WARRANTY IS MADE BY Q4 BASED ON TRADE USAGE, COURSE OF DEALING, OR COURSE OF TRADE. Q4 DOES NOT WARRANT THAT THE Q4 PRODUCTS OR ANY OTHER MATERIALS, SOFTWARE, DATA, AND/OR SERVICES PROVIDED UNDER THIS AGREEMENT SHALL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS SHALL BE CORRECTED.
8.0 LIMITATION OF LIABILITY
8.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.0 MUTUAL INDEMNIFICATION
9.1 Indemnification by Q4. Q4 will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that any purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees, and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Q4 in writing of, a Claim Against Customer, provided Customer (a) promptly gives Q4 written notice of the Claim Against Customer, (b) gives Q4 sole control of the defense and settlement of the Claim Against Customer (except that Q4 may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Q4 all reasonable assistance, at Q4’s expense. If Q4 receives information about an infringement or misappropriation claim related to a Service, Q4 may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Q4’s warranties under “Q4 Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Q4 if the Services or use thereof would not infringe without such combination; or (3) a Claim against Customer arises from Customer Data, a Non-Q4 Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
9.2 Indemnification by Customer. Customer will defend Q4 and its Affiliates against any claim, demand, suit or proceeding made or brought against Q4 by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-Q4 Application provided by Customer, or (c) the combination of a Non-Q4 Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Q4”), and will indemnify Q4 from any damages, attorney fees and costs finally awarded against Q4 as a result of, or for any amounts paid by Q4 under a settlement approved by Customer in writing of, a Claim Against Q4, provided Q4 (a) promptly gives Customer written notice of the Claim Against Q4, (b) gives Customer sole control of the defense and settlement of the Claim Against Q4 (except that Customer may not settle any Claim Against Q4 unless it unconditionally releases Q4 of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Q4 arises from Q4’s breach of this Agreement, the Documentation, or applicable Order Forms.
9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
10.0 TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
10.2 Term of Purchased Services. The term of each subscription service shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one -year terms unless either party gives the other written notice (email acceptable) at least 60 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Q4’s applicable list price in effect at the time of the applicable renewal.
10.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event Customer terminates this Agreement pursuant to this section of elects to not renew this Agreement under section 10.2, written notice is required to be sent to cancellations@q4inc.com and marked as a "Legal Notice" as set forth in section 11.9.
10.4 Termination of Individual addenda. In addition to each Party’s rights under Sections 10.1, 10.2, and 10.3, either party may terminate the applicable addenda in the event of a material breach that is not cured within 30 days of written notice of such material breach, provided, however, such termination will not take effect if the breaching party cures or corrects the breach within the 30 -day notice period. Q4 may terminate the Agreement and all applicable addenda if Customer is in material breach of the license granted hereunder and the restrictions related thereto.
10.5 Refund or Payment Upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, Q4 will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Q4 in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Q4 for the period prior to the effective date of termination.
10.6 Effect of Termination. Upon any termination of this Agreement, Customer shall immediately discontinue all use of the Q4 Services and the parties shall act according to any remaining obligations set forth in the “Refund or Payment Upon Termination” section above.
10.7 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Q4 retains possession of Customer Data.
11.0 GENERAL PROVISIONS
11.1 Export Compliance. The Services, Content, other Q4 technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Q4 and Customer each represent that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.
11.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
11.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Q4 and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, (3) any attached addenda, and (4) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
11.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.5 Third -Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
11.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.8 Notice. Notices should be addressed to
Q4 Inc.
99 Spadina Ave. Suite 500,
Toronto, ON M5V 3P8
Attn: General Counsel
11.9 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
11.10 Q4 Contracting Entity and Governing Law. The Q4 entity entering into this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the court that have jurisdiction over any dispute or lawsuit, depend on where Customer is domiciled.
11.11 Customers domiciled in North America, South America, Central America, or the Caribbean. The Q4 entity entering into this Agreement is Q4 Inc.
11.12 Customers domiciled in the United Kingdom. The Q4 entity entering into this Agreement is Q4 London Limited.
11.13 Customers domiciled in the European Economic Area (EEA). The Q4 entity entering into this Agreement is Q4 Denmark ApS.
11.14 Assignment. Customer shall not assign its rights or delegate its obligations under this Agreement without Q4’s prior written consent; any such consent shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of Q4 and Customer and their successors and permitted assigns.