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QS SALESPULSE GENERAL TERMS & CONDITIONS FOR ONLINE SERVICES##Questback Salespulse Inc, 21 Waterway Avenue.The Woodlands, TX 77380. (hereinafter referred to as “QS”) and Customer, enter into these QS General Terms & Conditions for Online services (“GTC-O”) by signing, or electronically accepting, this GTC-O, or applicable Order Form(s), if any, referencing this GTC-O. #### ##SCOPE##1. License Grant and limitations##1.1 The Customer is granted a non-exclusive, non-transferable and non-assignable right to access and use the Online Services in accordance with the Contract.##1.2 The Online Services shall be accessed only by the authorized number of Users, to do work solely for the benefit of Customer. ##1.3 The Online Services shall be accessed according to the agreed number of Users, and solely for the purpose of collecting feedback from customers or prospects as part of an ongoing sales process. ##1.4 QS grants no access or usage rights beyond those specifically listed in the Contract. Under no circumstances can the Customer lease, sell, or transfer any of its rights under the Contract, or in other ways directly or indirectly make available to or charge a third party for any part of the Online Services. If the Customer has used, or allowed use of, the Online Services beyond the agreed License Metrics or other limits stated in this Contract, or transferred its rights, this shall entitle QS to invoice the additional usage, including retroactively (without limiting other remedies to which QS might be entitled). ####2. Provision and Availability of the Online Services ##2.1 QS shall provide the Online Services with the functionality available in its most recent release. ##2.2 QS reserves the right to make changes to the Online Services, including the right to change, improve or remove parts of the functionality of the Online Services. QS will notify the Customer in advance in a timely manner of such changes, and unless the Customer objects to the changes via email within one month from the notification the changes are deemed accepted by the Customer. If the Customer objects to the changes and QS cannot resolve the issue, QS is entitled to terminate the provision of the Online Services. ##2.3 QS reserves the right to perform upgrades and maintenance of the Online Services (including version changes). This may lead to the Online Services being temporarily unavailable to the Customer and respondents. ##2.4 QS may monitor the Customer’s use of the Online Services for the purpose of anonymous statistics, and for support, development, prevention and protection against use outside the scope of the Contract, and unlawful use. For the avoidance of doubt, no personal data will be processed under this section.####3. Technical Support##3.1 Technical support will be provided only from QS’s place of business, unless otherwise agreed, and will be provided during local business hours Monday through Friday, excluding public holidays.##3.2 During the term of the Online Services, QS will, either by telephone or in writing, help Customer solve specific problems with use of the Online Services, according to specifications in this section. It may not be possible for QS to solve all problems or correct all errors in the Online Services. ##3.3 QS will use reasonable endeavours to perform backup of, and restore if necessary, all the data related to the Customer’s use of the Online Services. Restoration of data deleted by the users themselves is not included in the service. ##3.4 From time to time, QS may make available new releases, updates and corrective code. During ongoing Online Services development, QS may add, change or delete individual components or functionality in new releases. Such Online Services modifications shall be subject to the terms of the Contract. Changes in Support level will be reported to Customer in writing.####DEFINITIONS AND ORDER OF PRECEDENCE##4. Definitions##4.1 “Anniversary Date” is the date defined as such in the Order Form##4.2 “Contract” refers to this GTC-O and its Order Form(s), and other supplement(s) or amendment(s) collectively.##4.3 “License Metric” refers to the limitations within which the Customer has access to the Online Services listed in the Order Form. All License Metrics relate to the total use for Customer.##4.4 “Online Services” refers to the licensed software products.##4.5 “Order Form” refers to a document or online form for placing orders under this Contract. ##4.6 “Party”, and “Parties” refers to QS and Customer, individually or jointly ##4.7 “QS” refers to the entity in the QS group identified in this GTC-O and applicable Order Form(s).##4.8 “Respondents” refers to individuals that are invited to respond to surveys, or to make part of panels or communities, as set up by Customer using the Online Services.##4.9 “Subscription Start Date” is the date defined as such in the Order Form##4.10 “User” refers to every individual employee or on-site contractor of a Customer that has access to the Online Services. ####5. Order of precedence##5.1 In case of inconsistency between the provisions in the documents, the Order Form shall take precedence over the GTC-O, while the GTC-O shall take precedence over any other Supplements, amendments or other documents with reference to this GTC-O.####TERM AND TERMINATION##6. Term of the Contract##6.1 The Contract shall take effect on the date of signature, and shall remain in effect until all Order Forms under the Contract are terminated according to the Contract.##6.2 The right to use Online Services according to the Contract shall commence after the signature date, no later than the subscription start date stated in the applicable Order Form, and shall remain in effect until the first Anniversary Date as defined in the Order Form. The license shall automatically renew for a period of twelve (12) months, starting on the Anniversary Date each year, unless it is terminated by one of the parties according to this Contract. ####7. Termination; Expiration. ##7.1 Either Party may terminate the annual license for any Online Service with two (2) months written notice prior to the Anniversary Date. Such notice of termination must be presented to the other party in writing to the address or email address specified in the Order Form.##7.2 Either Party may terminate the Contract or annual license for any Online Service in case of material breach of the other Party’s obligations in this Contract, unless such material breach is cured within sixty (60) days of the Party’s written notice. ##7.3 QS may terminate the Contract immediately for any violation by Customer of QS’ intellectual property rights, or for use of the Online Services in violation of any applicable laws or regulations. ##7.4 Obligations in the Contract that by their nature are continuing will survive termination or expiration. ####PRICES AND PAYMENT##8. Annual fees ##8.1 Provision of access to the Online Services is subject to payment of annual fees. Fees for the first annual term are listed in the Order Form, and Fees for the following annual terms will be provided on annual invoices. All fees are listed exclusive of taxes, which shall be payable in addition.##8.2 QS reserves the right to change the price of the Online Services once per calendar year. For a price change of more than 3 % to be valid, QS must give notification of the change at least three (3) months in advance. ##8.3 Any use exceeding agreed use in the applicable Order Form will be effective upon, and will be invoiced as of, the time of the usage change. If such exceeded use has not been reported to QS according to the regulations in section 14.1, QS may, in addition, invoice an interest rate according to section 9.1 from the time of the usage change.##9. Invoicing and payment##9.1 QS will invoice the Customer upon or after the Order Form signature date for year 1. For the following years, QS will invoice the Customer before Anniversary Date each year. Customer will pay the invoices within 15 days from the invoice date. In case of late payments, an interest of 8 %, or an interest according to national legislation regarding late payment interest, as applicable, whichever is higher, will be added to the invoice.##9.2 QS reserves the right to suspend or block the Customer’s access to the Online Services on the Anniversary Date, or after subscription start date, if the applicable invoices are not paid when due. ##9.3 Except as otherwise allowed in the Contract, refunds are not available after payment.##9.4 The Customer undertakes to comply with the agreed terms of payment, even in the event of a complaint with respect to the Online Services. When the outcome of such a dispute is that the Customer has a rightful claim for compensation, such compensation will be provided to Customer without delay. ####RIGHTS AND OWNERSHIP####10. Title and Source Code to Online Services##10.1 Title to the Online Services and its documentation remains with QS and its licensors at all times. Copyright notices and other proprietary rights notices in the Online Services shall not be deleted or modified. The Contract does not transfer any title or ownership rights. Source code from which the Online Services object code is derived is not being provided and is a trade secret of QS to which access is not authorized. Neither Customer nor any User shall reverse engineer, reverse assemble or decompile the Online Services or in any way attempt to recreate the Source Code.####11. Data and materials##11.1 Title to, and ownership of, all data, information, documents, papers and other material – hereinafter together referred to as “Material” – provided by QS to the Customer, including all copyrights and proprietary rights applicable thereto, shall at all times remain solely and exclusively with QS.##11.2 Customer shall not take any action inconsistent with such title and ownership. All trademarks related to the Online Services contained in the Material provided by QS to Customer are trademarks of QS and/or its licensors.##11.3 Distribution lists, surveys and email content entered into the Online Services by Customer, as well as the results of the Customer’s use of the Online Services, remain the property of the Customer. ####CONFIDENTIALITY, SECURITY AND DATA PROTECTION####12. Confidentiality##12.1 With the exception for entities in the QS group, and QS suppliers, required to access information in order to provide required services to Customer, QS will not at any time divulge any information or data resulting from Customer’s use of the Online Services to any third party. QS may not, at any time, disclose the data without the explicit written consent of the Customer, unless such is permitted or required due to statutory provisions. These restrictions shall survive the termination of the Contract. ##12.2 QS and the Customer each undertake to keep all business and trade secrets received from the other party in connection with the Contract and the provision of the Online Services confidential, including the price and content of the Contract. ##12.3 The Online Services provided by QS run on servers in a secure environment and operated by authorized personnel only. The obligations set out in this Section 12 are also applicable for such personnel. ####13. Protection of Personal Data ##13.1 The Customer is obligated at all times to ensure that any collection, storage, deletion or other processing of personal data is in accordance with applicable law. ##13.2 QS commits to providing the Customer, at request, with documentation of its IT security activities and procedures implemented to ensure its high level of IT security. ##13.3 Furthermore, QS’s policy is to protect and safeguard any and all personal information controlled by other entities, obtained by QS, to the fullest extent, consistent with any United States state or federal laws governing the protection of personal information and data. Accordingly, QS adheres to practices and policies aimed to safeguard the data, computer files and documents containing personal information of others from misuse by third parties or from accidental or unlawful disclosure or destruction. QS maintains any such personal information and data only as long as is necessary or as otherwise required by law.####CUSTOMER’S WARRANTIES AND OBLIGATIONS##14. Customer’s Duties, Warranties and Responsibilities ##14.1 The Customer is at all times under obligation to comply with all applicable laws and regulations regarding without limitation: security, privacy, direct marketing and mass distribution. ##14.2 Customer is responsible for informing all parties authorized to access or use the Online Services of the relevant terms of the Contract and any related user documentation, and be responsible for their adherence to such terms. ##14.3 The Customer is directly responsible for all data and other content the Customer enters into, collects and/or distributes via any of the Online Services. The Customer warrants that the content will not infringe any applicable laws, regulations or third party rights (including Intellectual Property Rights) or include material which is in breach with applicable security or privacy regulations, or regarded as offensive or defamatory under applicable law. It is Customers' responsibility to ensure that any files downloaded are checked in accordance with their own file security guidelines and requirements. Any data content the Customer uses or distributes via the Online Services must be accurate, and comply with all applicable laws, rules and regulations.##14.4 The Customer hereby indemnifies QS against all claims, demands, costs (including reasonable legal costs) expenses, losses and liabilities incurred by QS as a result of any action or claim that content collected, stored and distributed by Customer through the Online Services is illegal or inappropriate, or was collected, stored, or distributed in violation of applicable law, or that such content infringes third party Intellectual Property Rights. This section shall survive termination of the Contract. ####QS’S WARRANTIES AND OBLIGATIONS##15. Limited warranty ##15.1 QS warrants that it has the right to license the Online Services to Customer. The exclusive remedy for breach of this warranty is set forth in sections 15, 16 and 17. ##15.2 QS warrants that the Online Services will substantially conform to its user documentation including any updates thereto. If it does not, at QS’s option, QS will as its exclusive remedy for breach of this warranty either make it conform, replace it with conforming services, or terminate the license and refund the relevant portion of the license fees for the relevant Online Services for the current period. ##15.3 QS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING AS A RESULT OF CUSTOM OR USAGE IN THE TRADE OR BY A COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, QS DOES NOT WARRANT OR REPRESENT THAT USE OF THE ONLINE SERVICES WILL RESULT IN COMPLIANCE, FULFILMENT OR CONFORMITY WITH THE LAWS, RULES, REGULATIONS, REQUIREMENTS OR GUIDELINES OF ANY GOVERNMENTAL AGENCY. QS’S LICENSORS PROVIDE ONLINE SERVICES “AS IS”. ####16. Liability ##16.1 Each Party’s liability in relation to the subject matter of this Contract is limited to direct losses suffered by the Party, and caused by the other Party’s breach of obligations under this Contract. ##16.2 With exception for liability arising from fraudulent misrepresentation or other fraud, gross negligence or wilful misconduct, breach of obligations under section 17 (indemnification) or from personal injury or physical damage, neither Party shall be liable for special, incidental, indirect or consequential damages including but not limited to loss of profits and loss of data, however caused and under any theory of liability and whether or not the Party has been advised of the possibility of such loss.##16.3 Under no circumstances will QS be liable for punitive damages arising in contract or tort.##16.4 Each Party’s liability in relation to this Contract, including any indemnities and penalties, shall not, under any circumstances, exceed the license fees paid by the Customer in the preceding 12 months period under the Contract, excluding any value added tax. ##16.5 QS is not in control of the content collected, stored and distributed by Customer through the Online Services, and expressly disclaims any responsibility or liability for the content distributed, stored and/or collected through use of the Online Services, or the results generated. ##16.6 This section 16 shall survive termination of the Contract.####17. Indemnification ##17.1 If any claim alleging that the Online Services infringe any copyright, patent, trade secret or other intellectual property rights belonging to a third party is made against the Customer, the Customer agrees to promptly notify QS in writing, allow QS to conduct and control the litigation or settlement of such claim, and cooperate with QS in the investigation, defence, and/or settlement thereof. Subject to such prompt notification, QS shall indemnify the Customer by paying any settlement approved by QS, or any judgment, costs, or legal fees finally awarded against the Customer for such claim. Customer may participate at Customer's own expense. ##17.2 This indemnification obligation shall not apply to the extent the claim is based on or is a result of a combination of the Online Services with other software or any modification to the Online Services if such claim would not have been made but for the combination or modification or to the extend the claim relates to content collected, stored and distributed by Customer through the Online Services. ##17.3 If such a claim is made or, in QS’s opinion, is likely to be made, QS, at its discretion, may modify the Online Services, obtain rights for the Customer to continue using the Online Services, or terminate the license for the Online Services product at issue and refund the relevant portion of the current license fees paid by Customer. Customer agrees to abide by QS’s decision and, if required, cease using the Online Services. ##17.4 If any claim is made alleging that the Customer’s use of the Online Services is unlawful or infringes any intellectual property rights belonging to a third party, Customer shall defend, hold harmless and indemnify QS.##17.5 This section 17 shall survive termination of the Contract.####GENERAL ##18. Amendments to the GTC-O ##18.1 QS may amend the GTC-O during the course of a current contractual relationship provided that QS informs the Customer of the planned change at least one month prior to its taking effect, by sending updated terms. If the Customer continues to use the Online Services without written objection or termination within one month of receiving such notice, the changes are deemed agreed between the parties. ####19. Severability ##19.1 If a provision of the Contract is or becomes illegal, invalid or unenforceable in any jurisdiction, this shall not affect: the legality, validity or enforceability in that jurisdiction of another provision of the Contract; or the legality, validity or enforceability in other jurisdictions of that or any other provision of the Contract. ##19.2 Notwithstanding section 19.1 above, the Parties hereto agree that they will negotiate in good faith and will replace the invalid, void or unenforceable provision with a valid and enforceable provision which reflects as much as possible the intention of the Parties as referred to in the provision thus replaced. ####20. Complete agreement##The Contract constitutes the entire agreement between the parties and supersedes all prior agreements or proposals concerning its subject matter. No other terms and conditions of the Customer will be deemed agreed even if QS fails to explicitly reject them. Modifications to the applicable Order Form(s) must be in writing, signed by both parties, and specifically reference the Contract. Obligations in the Contract that by their nature are continuing survive termination or expiration of the Contract. ####21. Publicity##QS may ask Customer to act as customer reference up to four times a year. Customer is under no obligation to act as reference without explicit consent thereto.####22. Injunctive Relief ##Breach of QS's or QS’s licensors’ intellectual property rights will lead to damages not adequately remedied by an award of money; therefore, QS may protect those intellectual property rights through injunctive relief according to applicable law.####23. Assignment##23.1 Customer may not assign the Contract or any of its rights or obligations hereunder without QS’ written permission, which permission will not be unreasonably withheld.##23.2 For the purpose of this Contract, the Parties agree that change of ownership or change of control is not regarded as Assignment or transfer.####24. Choice of law and legal venue ##24.1 The laws of the country or state of QS’s place of business, excepting choice of law provisions, govern this GTC-O and any disputes that arise out of or are related to this GTC-O. Both parties agree to comply with applicable export and import laws and regulations. The parties agree that this GTC-O is not a contract for the sale of goods; therefore, this GTC-O is not to be governed by the United National Convention on Contracts for the International Sale of Goods or any codification thereof.##24.2 The parties hereby submit to the exclusive jurisdiction of any court sitting in the country or state of QS’s place of business for the purpose of any action that arises out of or relates to this GTC-O brought by any party hereto.
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