BY ACCESSING OR USING THE QUEPID SOFTWARE PRODUCT DESCRIBED IN THIS AGREEMENT, SUBSCRIBER AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, SUBSCRIBER SHOULD NOT ACCESS OR USE THE SOFTWARE.
QUEPID BETA SUBSCRIPTION SERVICES AGREEMENT
This Quepid Beta Subscription Services Agreement (this "Agreement") is made and entered into as of the Signup Date (as hereafter defined) by and between OPENSOURCE CONNECTIONS, LLC, a Virginia limited liability company ("OSC"), and the entity or organization identified in the Quepid Beta Signup Form ("Subscriber").
This Agreement covers OSC's provision of the following services (the "Services"): (1) the hosting, management and operation of a beta version of OSC's search-based application (SBA) known as "Quepid" ("Quepid"), which provides certain functionality to enhance the relevancy of searches of Internet websites; and (2) other related services for the remote electronic access and use by Subscriber and its authorized users of the Software (collectively, the Services"). Quepid and all modules thereof for which OSC provide the Services shall be referred to herein, collectively, in this Agreement as the "Software."
OSC and Subscriber are assessing a potential future transaction pursuant to which OSC may provide services for the hosting, management and operation of a to-be-developed, final, commercially-released version of the Software and/or other services relating to the remote electronic access and use by Subscriber of such a commercially-released version of the Software. In connection therewith, the parties desire and intend for OSC to provide the Services and grant Subscriber a limited subscription for Subscriber and its authorized users to remotely access and use the Software for the following purposes upon the terms set forth in this Agreement (the "Authorized Uses"): (i) for Subscriber's internal business purposes relating to searches of its Internet websites; and (ii) to assist OSC to identify bugs, errors, limitations, and areas for enhancement and improvement relating to the Software.
As a condition to OSC providing the Services and granting Subscriber with access to and use of the Software, an authorized representative of Subscriber with legal authority to act on behalf of Subscriber must: (1) complete the Quepid Beta Signup Form located at quepid.io (or such other site that may be designated by OSC) (the "Host Site") providing the information requested therein; (2) read and accept all of the terms and conditions of this Agreement; (3) acknowledge and confirm having read and accepted all of the terms of this Agreement; and (4) comply with such other signup procedures and protocols that OSC may require and/or that are described in this Agreement. Following completion of this process, OSC will consider Subscriber's request for OSC to provide the Services, which request OSC may accept or reject in its sole discretion.
If OSC accepts Subscriber's request to provide the Services, the following terms and conditions shall apply and be legally binding on the parties:
1. Services.
a. Subscription Access. As part of the Services, OSC will host the Software and provide Subscriber with remote electronic access to the Software through a secure web interface (the "Interface") at the Host Site using a unique log-in credentials that are created by, or issued to, Subscriber (the "Login Credentials"). Subject to the terms and conditions of this Agreement, OSC shall provide the Services so as to enable Subscriber to remotely access and use the Software on a limited, non-exclusive, non-transferable basis during the Term via the Interface solely for and in connection with the Authorized Uses (the "Subscription"). Subscriber is not granted any right, title, interests or license in or to the Software. Subscriber shall (a) only access and use the Software for the Authorized Uses and shall not access or use the Software (or any module or component thereof) in any other manner, or for any other purpose, including without limitation, for any other testing purposes or for any commercial purposes; (b) not permit any other person or entity other than Subscriber's authorized employees and agents to access or use the Software or the Subscription, including without limitation, any affiliated organization or entity (or if Subscriber is a federal or state government agency or department, any other federal or state government agency or department); (c) not use the Services or the Software in any manner for the benefit of any third party; and/or (d) not transfer or make available the Services or the Subscription (or the Login Credentials) to any third party or license or grant, or purport to license or grant, to a third party any ownership, proprietary, license, sublicense or other rights in or to the Services or the Subscription.
b. Services. OSC shall host, or arrange for the hosting of, the Software on an Internet server of OSC's designation. OSC shall have sole discretion with respect to all protocols, procedures and technical requirements relating to the hosting of the Software, the hosting environment, the host servers, and the design and functionality of the Interface. OSC shall have no obligation to provide any copies of the Software to Subscriber or any documentation relating thereto, including without limitation, any materials relating to the source code or the object code of the Software. Except for force majeure events, external security threats, and scheduled maintenance or upgrades, OSC shall use commercially reasonable efforts to ensure that the Host Site generally will be continuously available, but OSC does not represent or warrant that there will be no interruptions in service or that Subscriber will be able to access the Software at all times without interruption. Subscriber acknowledges and agrees that Subscriber may experience interruptions of service and occasionally may not be able to access and/or use the Software. Subscriber acknowledges and agrees that, from time to time, OSC may limit or suspend Subscriber's access to or use of the Software or the Interface to perform maintenance or upgrades. OSC shall attempt to provide User with advance notice of such periods and a good faith estimate of the length of time that Subscriber's ability to access the Software will be limited or suspended. Any such notice shall be posted on the Host Site.
2. Subscriber's Acknowledgements and Release. Subscriber acknowledges and agrees that (a) the Services are made available to Subscriber by OSC for the sole purpose of enabling Subscriber to remotely access and use the Software for the Authorized Uses; (b) the Software is still under development, may not be appropriate for commercial use by Subscriber, and may contain serious bugs, defects and errors; and (c) except for the Services, OSC has no obligation to provide any assistance or services to Subscriber in connection with the Software and/or this Agreement, including without limitation, any installation, training, support or maintenance services. SUBSCRIBER'S USE OF THE SOFTWARE IS AT SUBSCRIBER'S SOLE RISK. Subscriber, on behalf of itself and its assigns, representatives and agents, hereby forever releases, acquits and discharges, and agrees not to sue or institute any legal action against, OSC or any of OSC's officers, managers, members, employees, contractors and sub-contractors, agents, affiliates, licensors, Subscribers and business partners (each, an "OSC Released Party") from, against, and with respect to, all claims, actions, liability, obligations, damages and causes of action, of every kind, nature, and description whatsoever, whether based in tort, contract, or on any legal or equitable ground or theory of recovery that may give rise to liability, which arises out of, or relates to, the Services and/or any access, use or testing by Subscriber of the Software, including without limitation, any failure or malfunction of the Software.
3. Ownership and Proprietary Rights.
a. Definition of Intellectual Property Rights. The term "Intellectual Property Rights" means all worldwide patent, copyright, trademark and trade secret rights, including (i) all applications and registrations relating thereto; (ii) all statutory protection obtained or obtainable thereon; and (iii) all claims or causes of action relating to, or arising out of, any of the foregoing, including without limitation, the right to sue for past, present and future infringements of any such rights.
b. Ownership of Software and Software Intellectual Property. As between OSC and Subscriber, OSC does and shall exclusively own all right, title, and interest in and to the Software and all Intellectual Property Rights in and to the Software, including without limitation, all versions and derivative works of the Software, and all modifications, enhancements, versions, corrections or improvements to the Software that are created or developed by, or on behalf of, OSC as a result of the use or testing of the Software by Subscriber pursuant to this Agreement. In the event that Subscriber acquires any right, title, or interest in or to the Software or any Intellectual Property Rights therein, Subscriber agrees to, and does hereby, irrevocably assign all such right, title, and interest to OSC. Subscriber hereby assigns and agrees to assign to OSC all ideas, information, data, concepts, know-how and methods relating to the operation, improvement and/or enhancement of the Services and the Software that Subscriber communicates or otherwise makes available to OSC, and Subscriber acknowledges and agrees that OSC shall be free to use all of the foregoing in connection with its development and use of the Software without any obligation to Subscriber.
4. Confidentiality.
a. Confidential Information. The Software and all intellectual property associated therewith, or incorporated or embodied therein (including without limitation, the source code of the Software), together with (i) all documentation relating thereto; (ii) any information designated as "Confidential" by OSC; and (iii) any information that by its very nature, or under the circumstances of disclosure, is known by Subscriber to be, or should be reasonably understood to be, confidential that Subscriber or any of its employees or agents learns or discovers, constitute proprietary confidential information owned solely by OSC (collectively, "Confidential Information"). Subscriber agrees that it shall not, without the express prior written consent of OSC (i) use any Confidential Information for any purpose other than to access and use the Software as authorized by this Agreement; (ii) disclose any Confidential Information to any third party or allow any person or entity to access or use the Software, except to Subscriber's employees and agents, provided that all such employees and agents are contractually bound to Subscriber to maintain the secrecy of such information in accordance with the provisions of this Section 4; or (iii) fail to use commercially reasonable efforts to safeguard all Confidential Information from unauthorized access, use, copying, or disclosure. The obligations of this Section 4 shall survive the termination of this Agreement without limitation in duration.
b. Subscriber Data. The term "Subscriber Data" means any and all data and information that is uploaded by Subscriber into any of the databases supported or maintained by certain applications of the Software. As between the parties, Subscriber shall own all Subscriber Data.
c. Protection and Use of Subscriber Data. As part of the Services, OSC shall use commercially reasonable efforts to protect the security and integrity of its networks and servers to prevent unauthorized access to Subscriber Data by third parties. OSC cannot and does not guarantee the absolute safety and confidentiality of Subscriber Data and expressly disclaims any warranty or representation that Subscriber Data will not or cannot be improperly accessed or disseminated by third parties. Subscriber shall exercise reasonable care and discretion in the selection of Subscriber Data to be uploaded by Subscriber (and its authorized employees and agents), and shall refrain from uploading any highly sensitive information, including social security numbers and sensitive medical information. OSC shall have no liability to Subscriber or any third party for any unauthorized access, dissemination, or use of Subscriber Data, including social security numbers and sensitive medical information that have been uploaded to the databases of the Software by Subscriber or its employees or agents. Subscriber shall be solely responsible for protecting the secrecy of its Login Credentials. Except in connection with the provision of the Services to Subscriber, OSC shall not use, disclose, or sell any Subscriber Data to any third person or entity without the prior written consent of Subscriber. Subscriber grants OSC a license to use all Subscriber Data in all such manners as OSC may reasonably require in connection with the operation, maintenance, and repair of the Software and/or the provision of any Services to Subscriber. Subscriber shall not have any confidentiality obligation with respect to any Subscriber Data that (i) OSC can document was either previously known to it as a matter of record; (ii) OSC lawfully obtained from another person or entity under no obligation of confidentiality; (iii) is, or becomes, publicly available other than as a result of an act or omission of OSC or any of its agents; or (iv) is required to be disclosed pursuant to the requirement of a government agency, order of a court of competent jurisdiction, or by operation of law.
5. Financial Terms. In recognition of the beta status of the Software, Subscriber shall not be required to make any payments to OSC for providing the Services. If the parties consummate a separate agreement relating to OSC's provision of services for a commercial version of the Software, the payments to be made by Subscriber to OSC shall be set forth in and governed by such separate agreement.
6. Representations and Warranties.
a. Mutual Representations and Warranties. Each party hereby represents and warrants to the other party as follows: (i) it has full power and authority to enter into this Agreement; to perform all of its obligations hereunder; and its execution of this Agreement does not violate any other agreement by which it is bound; and (ii) its performance of this Agreement will at all times comply with all applicable United States federal, state, and local laws.
b. Disclaimer of Warranties. OSC MAKES NO WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE SOFTWARE, AND/OR THE INTELLECTUAL PROPERTY RIGHTS TO THE SOFTWARE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED AND NEGATED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY INFORMATION PROVIDED ON THE WEBSITE OR IN THE DOCUMENTATION RELATING TO THE SERVICES AND/OR THE SOFTWARE, INCLUDING THE FUNCTIONALITY AND PERFORMANCE FEATURES OF THE SOFTWARE, IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE A WARRANTY OR REPRESENTATION AS TO THE FUNCTIONALITY, QUALITY OR CAPABILITIES OF THE SERVICES OR THE SOFTWARE OR THE AVAILABILITY THEREOF. OSC FURTHER DISCLAIMS ANY WARRANTY THAT THE SOFTWARE IS FREE FROM CLAIMS OF INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, OR OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF OTHERS. THE SERVICES ARE PROVIDED "AS IS" AND WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, INFRINGEMENT, AND EFFORT IS WITH SUBSCRIBER. OSC DOES NOT REPRESENT OR WARRANT THAT SOFTWARE OR THE SERVICES ARE OR WILL BE FREE FROM SIGNIFICANT DEFECTS OR ERRORS THAT MATERIALLY AFFECT THE PERFORMANCE, ACCURACY, OR AVAILABILITY THEREOF.
7. Limitation of Liability. IN NO EVENT WHATSOEVER SHALL OSC BE LIABLE TO SUBSCRIBER OR TO THIRD PARTIES FOR ANY DAMAGES CAUSED, IN WHOLE OR IN PART, BY THE USE OF THE SERVICES AND/OR THE SOFTWARE BY, OR ON BEHALF OF, SUBSCRIBER, OR FOR ANY LOST REVENUES, LOST PROFITS, LOST SAVING OR OTHER DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCURRED BY SUBSCRIBER REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR ANY OTHER LEGAL THEORY, AND EVEN IF OSC WAS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. OSC'S MAXIMUM LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, OR ANY USE BY, OR ON BEHALF OF, SUBSCRIBER OF THE SERVICES AND/OR THE SOFTWARE IS LIMITED TO TEN DOLLARS ($10).
8. Indemnification. Subscriber shall indemnify, defend, and hold harmless OSC and all OSC Released Parties from and against any and all losses, damages, expenses, and costs (including reasonable attorneys' fees and court costs) suffered or incurred by OSC or any OSC Released Party arising out of, relating to, or which are directly or indirectly caused by: (a) Subscriber's use of the Services and/or the Software; (b) any breach of the terms of this Agreement by Subscriber; and (c) any use or disclosure of any Confidential Information of OSC in violation of the provisions of Section 4 above by Subscriber, or by any person or entity to whom Subscriber discloses any such Confidential Information.
9. Termination.
a. Term. As used in this Agreement, the "Signup Date" means the date that OSC accepts Subscriber's request to provide the Services and provides Subscriber with remote access to and use of the Software following Subscriber's completion and transmission of the Quepid Beta Signup Form. Unless terminated earlier as provided herein, the term of this Agreement (the "Term") shall be the period commencing on the Signup Date and ending on the first to occur of the following: (i) either party provides written notice of termination of this Agreement to the other party; or (ii) the parties' mutual execution of a separate agreement pursuant to which OSC authorizes Subscriber's commercial access and/or use of the Software. Either party may terminate this Agreement at any time at its convenience.
b. Consequences of Termination. Upon any termination of this Agreement, (i) the Services and the Subscription shall automatically terminate; (ii) Subscriber's rights to access and use the Software pursuant to this Agreement shall automatically terminate, and Subscriber shall cease all access and use of the Software; (iii) at OSC's request, Subscriber shall promptly deliver to OSC (or, at OSC's request, destroy or securely erase) all copies of Proprietary Information that are in the possession or under the control of Subscriber, which exist in any format or on any media; and (iv) at Subscriber's request, OSC shall return all Subscriber Data to Subscriber utilizing a media or delivery format reasonably selected by OSC.
10. Terms of General Application.
a. Independent Parties. Each party acknowledges and agrees that the other party is an independent party and shall have no authority to act as an agent of the other party. This Agreement does not create a joint venture, agency or partnership, and neither party shall bind, or purport to bind, the other party to any commitment, obligation, undertaking, or to any third party.
b. Assignment; Successors; Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Neither Subscriber nor OSC may assign its obligations hereunder, which are personal to OSC and Subscriber without the prior written consent of the other party. Notwithstanding the foregoing, OSC may assign this Agreement and its obligations hereunder, in whole or in part, to an affiliate of OSC or in connection with a merger of OSC with another entity or a sale of OSC or Quepid.
c. Equitable Relief. Subscriber acknowledges and agrees that any breach by Subscriber of Subscriber's obligations under this Agreement relating to Subscriber's use of the Software, or Subscriber's obligations with respect to Proprietary Information, may cause OSC irreparable damage, for which the award of damages would not be adequate compensation. Consequently, OSC may institute an action to enjoin Subscriber from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and Subscriber hereby consents to the entry of an injunction by any court of competent jurisdiction enjoining any breach or threatened breach of such provisions, in addition to any other relief to which OSC may be entitled at law or in equity.
d. Notices. All notices provided in connection with this Agreement will be in writing and delivered as follows: (1) if to Subscriber, at the e-mail address provided on the Quepid Beta Signup Form; and (2) if to OSC, at the following e-mail address: . Each party will notify the other of any change of e-mail address by written notice to the other party delivered as provided herein. Notices required by this Agreement will be deemed received at 10:00am EST of the next business day following transmission by e-mail.
e. Entire Agreement This Agreement, including its exhibits, comprise the entire agreement between the parties with respect to the subject matter of this Agreement, and it supersedes all prior representations and agreements with respect to the subject matter hereof. This Agreement can be amended or modified only by a written instrument signed by both OSC and Subscriber.
f. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to the conflict of laws rules of any jurisdiction. Without limiting the foregoing provision, the parties agree that the Virginia Uniform Computer Information Transactions Act (UCITA) is expressly excluded from this Agreement and that any and all terms contained in UCITA will have no force and effect on any portion of this Agreement. The parties agree that any claim, action, proceeding, or suit arising out of, or relating to, this Agreement will be commenced and maintained in a federal or state court of competent jurisdiction located in the City of Charlottesville, Virginia or Albemarle County, Virginia. Each party irrevocably consents to the exclusive personal jurisdiction of and venue in any such court. If any ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumptions or burden of proof will arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement.
g. No Waiver. No waiver or failure by either party to exercise any option, right or privilege under the terms of this Agreement on any occasion or occasions shall be construed to be a waiver of the same on any other occasion or of any other option, right or privilege.
h. Severability. If any provision of this Agreement, or the application thereof, is for any reason, and to any extent, determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties. The parties further agree to replace any such invalid or unenforceable provisions with valid and enforceable provisions designed to achieve, to the extent possible, the business purposes and intent of such invalid and unenforceable provisions.
i. Survival. The provisions of this Agreement which expressly, or by their nature, survive the termination of this Agreement shall so survive, including without limitation, the provisions of Sections 2, 3, 4, 6, 7, 8, 9, 10(c), 10(e) and 10(f).
Information to be Provided on Signup: (1) name of entity; (2) business address; (3) name and title of person signing up on behalf of entity; and (4) contact e-mail address.
Language to Include during Signup Process:
By clicking "I ACCEPT", you accept and agree, on behalf of the entity identified above, to be legally bound by all of the terms of the Quepid Beta Subscription Services Agreement, and you represent and warrant to OSC that you have read the Quepid Beta Subscription Services Agreement and that you are duly authorized by the entity identified above to enter into the Quepid Beta Subscription Services Agreement on behalf of such entity.