This Software Services Agreement ("Agreement"), effective as of the date of your acceptance of this Agreement ("Effective Date"), is entered into and agreed upon by and between [Your Name or Your Company Name], an individual or entity ("You" or "Company"), and Site Qwality Inc ("Site Qwality").
BY ACCEPTING THIS AGREEMENT, WHETHER BY INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT, OR UTILIZING THE SERVICES (DEFINED BELOW), YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND SITE QUALITY INC. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.
ANY MODIFICATIONS, ADDITIONS, OR DELETIONS MADE BY YOU TO THIS AGREEMENT WILL NOT BE VALID UNLESS EXPRESSLY AGREED TO IN WRITING BY SITE QUALITY INC. YOUR USE OF THE SERVICES INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT AND YOUR AGREEMENT TO ABIDE BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST REFRAIN FROM ACCESSING, DOWNLOADING, INSTALLING, OR USING THE SERVICES.
Site Qwality Inc reserves the right to modify this Agreement periodically and will publish the latest version on its website. Your ongoing use of the Services after the modification of the updated Agreement signifies your consent to be bound by its terms.
1.1 Agreement: refers to the Software Services Agreement, any relevant Product Addendum, the Data Processing Addendum, and the Order Form.
1.2 Client(s): denotes Your customer(s) if You operate as a Managed Service Provider (MSP).
1.3 Data Processing Addendum(a): encompasses the terms outlined in the data processing addendum, which are integrated into this Agreement by reference.
1.4 Devices: include physical or virtual servers, systems, workstations, computers, mobile devices, or endpoints utilized for accessing or utilizing the Services.
1.5 Documentation: signifies the official user documentation provided by Site Qwality Inc to You regarding the use of the Services, subject to periodic updates. Note that unofficial sources such as online community sites, videos, white papers, or related media, as well as feedback, are not considered Documentation.
1.6 MSP: stands for a Managed Service Provider.
1.7 Order Form: denotes the Site Qwality Inc order page, product information dashboard, or any other ordering document specifying Your acquisition of the Services, along with associated pricing and relevant details.
1.8 Personal Data: encompasses any information capable of identifying an individual.
1.9 Product Addendum(a): refers to additional terms and conditions outlined in Section 14 that pertain to the relevant Services or Documentation.
1.10 Services: encompass the products and software services provided by Site Qwality Inc, including any application programming interface (API) facilitating access to functionality.
1.11 Support: signifies the standard maintenance or support offered by Site Qwality Inc or its designated agents, as described in this Agreement, if applicable to You.
1.12 User: denotes an individual authorized by You to access and use the Services and Documentation, for whom You have procured a subscription or to whom You have supplied a user identification and password. Users may consist solely of Your employees, consultants, contractors, and, if applicable, Your Clients.
1.13 Your Data or Data: refers to the data, files, or information, including any containing Personal Data, accessed, utilized, communicated, stored, or submitted by You or Your Users concerning Your or Your Users' use of the Services.
2.1 Services License: Upon payment of fees and subject to continuous compliance with this Agreement, Site Qwality Inc hereby grants You a limited, non-exclusive, non-transferable license to access and use the Services and Documentation during the Term (as defined below). You may provide, make available to, or permit Your Users to use or access the Services or Documentation, in whole or in part. You acknowledge that Site Qwality Inc may utilize its licensors and service providers to deliver the Services to You. During the Term, Site Qwality Inc reserves the right to update or modify the Services or provide alternative Services to reflect changes in laws, regulations, technology, industry practices, or other relevant factors. Any updates or modifications to the Services will not materially reduce the level of performance, functionality, security, or availability of the Services during the Term. In the event Site Qwality Inc decides to discontinue the Services, it shall do so in accordance with its established End of Life Policy.
2.2 Evaluation or Beta License: If the Services and Documentation are provided to You for evaluation, beta, or release candidate purposes, Site Qwality Inc grants You a limited, non-exclusive, non-transferable evaluation license to use the Services and Documentation solely for evaluation purposes. This Evaluation License shall terminate upon the end date of the predetermined evaluation period or immediately upon notice from Site Qwality Inc at its sole discretion. The Services and Documentation provided under an Evaluation License are provided "AS IS" without indemnification, support, or warranty of any kind, express or implied.
2.3 Upgrading/Downgrading Account Type: If applicable to Your license, You may upgrade or downgrade Your Site Qwality Inc account type at any time. Such changes will take effect immediately. After an upgrade, You will be billed immediately for the additional fees due under the upgraded account type for the remaining time of the applicable Term. After the Initial Term, You may downgrade, within the parameters communicated by Site Qwality Inc, upon thirty (30) days prior written notice. Any modification in the amount due to Site Qwality Inc will take effect after the thirty (30) day notice period, unless otherwise agreed upon. Downgrading Your license may result in loss of content, features, or capacity as available under Your previous license, and Site Qwality Inc shall not be liable for such loss.
(i) Allowing individuals other than Your Users to access or use the Services or Documentation;
(ii) Reproducing, republishing, transmitting, or copying the Services or Documentation, except for backup or archival purposes not intended for transfer, distribution, sale, or installation on Your Devices;
(iii) Selling, renting, leasing, transferring, distributing, or otherwise transferring rights to the Services or Documentation without authorization;
(iv) Attempting to reverse engineer, decompile, create derivative works, or derive the source code of the Services or Documentation;
(v) Creating, marketing, or distributing add-ons or enhancements to the Services without prior written consent;
(vi) Removing proprietary notices or labels on the Services or Documentation, unless authorized;
(vii) Licensing the Services if You or Your Users are direct competitors of Site Qwality Inc, or for purposes of monitoring availability, performance, or functionality, or for benchmarking or competitive purposes;
(viii) Using the Services to store or transmit infringing, libelous, unlawful, or tortious material, or material violating third-party rights;
(ix) Using the Services to violate the rights of others;
(x) Using the Services to store or transmit malicious code, viruses, or other destructive technology;
(xi) Impairing or disrupting the integrity or performance of the Services or any other third party’s use of the Services;
(xii) Using the Services excessively in terms of bandwidth or storage; or
(xiii) Altering, circumventing, or providing means to alter or circumvent technical limitations, recurring fees, or usage limits of the Services.
(i) Ensure Your and Your Users' compliance with this Agreement and immediately terminate access to the Services for any violating party;
(ii) Comply with all applicable laws and regulations;
(iii) Maintain a constant internet connection and electrical supply as specified in the Documentation, and use the Services and Software only with properly licensed materials;
(iv) Install the latest version of the Software on Devices accessing or using the Services;
(v) Ensure legal ability to process Your Data and provide it to Site Qwality Inc, maintaining its accuracy, security, quality, integrity, and legality;
(vi) Keep registration information, billing information, passwords, and technical data accurate, complete, secure, and current for the duration of Your subscription;
If You are an MSP, You further agree to:
(i) Possess sufficient technical infrastructure, knowledge, and expertise to fulfill duties for Your Clients;
(ii) Provide sales, problem resolution, and support services to Your Clients;
(iii) Handle billing, invoicing, and collection for Your Clients;
(iv) Operate at Your own expense and risk under Your own name as an MSP.
4.1 Ownership of Site Qwality Inc Intellectual Property: The Services and Documentation are licensed, not sold. The use of "purchase" concerning licenses of the Services and Documentation does not imply a transfer of ownership. Except for the limited rights expressly granted by Site Qwality Inc, You acknowledge and agree that all rights, title, and interest in and to all copyright, trademark, patent, trade secret, intellectual property, and other proprietary rights relating to the Services, the provision of the Services, and the Documentation, belong exclusively to Site Qwality Inc or its suppliers or licensors. Any content accessed through the Services remains the property of the respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement grants You no rights to such content. Site Qwality Inc is granted a royalty-free, fully-paid, worldwide, exclusive, transferable, sub-licensable, irrevocable, and perpetual license to use any information, data, suggestions, enhancement requests, recommendations, or other feedback provided by You or Your Users relating to the Services. All rights not expressly granted under this Agreement are reserved by Site Qwality Inc.
4.2 Ownership of Your Data: You and Your Users retain all rights, title, and interest in and to all copyright, trademark, patent, trade secret, intellectual property, and other proprietary rights in and to Your Data. Site Qwality Inc's right to access and use Your Data are limited to those expressly granted in this Agreement. No other rights with respect to Your Data are implied.
5.1 Term: This Agreement will begin on the Effective Date and continue until the end of the period specified in the applicable Order Form (the "Initial Term"). You authorize Site Qwality Inc to automatically renew the Services upon expiration of the Initial Term (each a Renewal Term, collectively with the Initial Term, the "Term"). The Renewal Term will be the same length as the Initial Term unless otherwise specified.
5.2 Your Termination Rights: You may terminate the Agreement by providing Site Qwality Inc with thirty (30) days’ prior written notice. During the Initial Term, fees charged during the thirty (30) day notification period will be based on the list price of the monthly contract value. An early termination fee, based on the list price of the monthly contract value, will also be applied to the final invoice and due upon receipt during any Term.
5.3 Site Qwality Inc Suspension or Termination Rights: Site Qwality Inc may suspend or terminate this Agreement upon thirty (30) days’ prior written notice or immediately under certain circumstances, including bankruptcy proceedings, infringement of intellectual property, breach of this Agreement or Order Form, or pursuant to legal requests.
5.4 Effect of Termination: Termination does not relieve You of the obligation to pay any accrued fees. You shall not receive a credit or refund for any fees or payments made prior to termination. Upon termination, You must cease all use of the Services and Documentation and destroy or return all copies. You must retrieve Your Data within five (5) business days of termination. Site Qwality Inc reserves the right to delete Your Data upon termination.
Sections 1, 3, 4, 5, 4, 6, 7, 9, 10, 11, 12, 13, and 14 shall survive any termination or expiration of this Agreement.
6.1 Fees and Payment: All orders placed are deemed final upon acceptance by Site Qwality Inc. Fees are due and payable as specified on the Order Form. Unless stated otherwise, fees shall be based on Site Qwality Inc’s then-standard rates at the time of invoice or as indicated in the Order Form. Failure to pay may result in Site Qwality Inc, at its discretion, suspending Services, charging interest, and/or terminating this Agreement. Exceeding the license capacity designated in the Order Form may incur additional fees, reflected in Your invoice. All payments shall be made in United States dollars and are non-refundable.
6.2 Taxes: All fees are exclusive of taxes, and You shall pay or reimburse Site Qwality Inc for all applicable taxes arising from transactions under this Agreement. If You are required to withhold tax, You shall gross Your payments to Site Qwality Inc to ensure Site Qwality Inc receives sums due in full. You agree to provide documentation showing tax payments to the relevant taxing authority upon request. "Taxes" include sales tax, VAT, use tax, and other applicable charges.
7.1 Your Data: Site Qwality Inc reserves the right to remove any data deemed harmful, illegal, or infringing. You are responsible for backing up Your Data and acknowledge that Site Qwality Inc is not liable for its loss. Site Qwality Inc may process data about Your use of the Services to improve its products and services. You are deemed the data controller for Personal Data processing under this Agreement.
7.2 Protection of Your Data: Both parties shall comply with applicable data protection laws and maintain appropriate security measures for Confidential Information and Personal Data. Site Qwality Inc will process Personal Data in accordance with the Data Processing Addendum. You are responsible for ensuring the Services' security aligns with Your intended use and the processing of Personal Data.
Confidential Information includes nonpublic information or materials disclosed by either party, including Personal Data. Each party agrees to handle Confidential Information confidentially, restricting disclosure and using reasonable care to protect it. Exceptions to this include information that is publicly available, received from a third party without restrictions, known to the receiving party prior to disclosure, or independently developed. Disclosure may be required by law, but the recipient must notify the disclosing party promptly and seek to limit disclosure where possible. Violation of confidentiality obligations may lead to injunctive relief and other remedies.
The Services, Documentation, and all other products and services provided herein, including third-party hosted services, are offered on an "as is" and "as available" basis. Site Qwality Inc disclaims all representations and warranties, whether express, implied, or statutory, including but not limited to warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, reliability, security, and continuity. Site Qwality Inc does not guarantee that the Services will meet Your requirements or that defects will be corrected. Site Qwality Inc expressly disclaims responsibility for third-party products and services used in conjunction with the Services.
10.1 Site Qwality Inc Indemnification: Site Qwality Inc will indemnify, defend, and hold You harmless from any third-party claims alleging that the Services infringe upon intellectual property rights, provided You meet certain conditions. Site Qwality Inc's indemnification obligations are subject to prompt notification, cooperation, and provision of assistance from You.
10.2 Your Indemnification: You agree to indemnify and hold Site Qwality Inc and its Affiliates, directors, employees, and agents harmless from claims arising from Your Data, Your breach of this Agreement, or Your misuse of the Services or Documentation.
To the maximum extent permitted by law, Site Qwality Inc and its Affiliates, directors, employees, and agents shall not be liable for any indirect, special, incidental, consequential, punitive, or exemplary damages arising from or related to this Agreement, the Services, or any other products or services provided herein. The aggregate liability of Site Qwality Inc and its Affiliates shall be limited to termination of this Agreement and damages not exceeding the total amount paid to Site Qwality Inc under this Agreement during the twelve months prior to termination.
Third-party programs accessed through the Services are governed by their own license terms, which may prevail over this Agreement. Your rights under third-party programs are not limited by this Agreement.
If applicable, Site Qwality Inc shall provide Support during the Term in accordance with the applicable terms and conditions. You agree to promptly report any issues and cooperate with Site Qwality Inc to resolve them. Site Qwality Inc is not obligated to provide Support for issues caused by unauthorized modifications, improper use, or third-party products not authorized in the Documentation.
14.1 Notices: All notices must be in writing and sent to the designated address or email provided. Evidence of effective transmission must be retained.
14.2 Entire Agreement: This Agreement constitutes the entire understanding between the parties regarding the Services and Documentation and supersedes all prior agreements or understandings, written or oral. In case of conflict with other Site Qwality Inc terms or conditions, this Agreement prevails.
14.3 Export Control Laws: The Services and Documentation are subject to export control laws and regulations. You agree to abide by all applicable export control laws and not to export the Services or Documentation to prohibited countries or entities.
14.4 Modifications: This Agreement may only be amended in writing signed by authorized representatives of both parties.
14.5 Severability: If any provision of this Agreement is deemed unenforceable, the remaining provisions shall remain in full force. The parties agree to replace unenforceable provisions with enforceable ones to the extent possible.
14.6 Waiver: The failure of either party to exercise any right provided in this Agreement shall not constitute a waiver of that right.
14.7 Force Majeure: Site Qwality Inc shall not be liable for delays or failures in performance due to causes beyond its reasonable control.
14.8 Construction: Paragraph headings are for convenience and do not affect interpretation.
14.9 Governing Law: This Agreement shall be governed by the laws of the State of Texas, without regard to any conflict of law provisions. Both parties consent to the jurisdiction of the state and federal courts of Texas.
14.10 Third-Party Rights: This Agreement does not create rights for any person who is not a party to it.
14.11 U.S. Government Use: Site Qwality Inc's Services and Documentation are deemed commercial items, subject to certain restricted rights under applicable government acquisition regulations.
14.12 Relationship of the Parties: The parties are independent contractors, and nothing in this Agreement creates a partnership, joint venture, or employment relationship between them.
IN WITNESS WHEREOF, each of the Parties has executed this Agreement by its duly authorized representatives on the respective date entered below.
ACCEPTED AND AGREED TO: Site Qwality Inc: