Customer Agreement
Last updated
Aug 31, 2022
Terms and Conditions
This eqtble Customer Agreement (this “Agreement”) is entered into by and between Eqtble, Inc., a Delaware corporation (“eqtble”), and Customer. “Customer” means the company or other legal entity that entered into an Order Form (as defined below) referencing these Terms and Conditions. This Agreement applies to Customer’s use of the eqtble Product (as defined below). You represent that you have the authority to bind Customer to the terms of this Agreement. If you do not agree to the terns of this Agreement, or if you are not authorized to accept this Agreement on behalf of your organization or entity, do not access or use any of the eqtble Products.Backgroundeqtble has developed and makes available a cloud-based service that provides employee insights(the “eqtble Product”). Customer desires to use the eqtble Product to augment its existing HR systems and processes.
Definitions
The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity."Anonymized Data" means aggregated, redacted, or anonymized forms of Customer Data that do not identify Customer or any individual.“Confidential Information” means any information or data disclosed by or on behalf of one party ("Disclosing Party") to the other party ("Receiving Party") that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure, including, as applicable to eqtble, eqtble source code, know-how, trade secrets, customer lists, financial information."Customer Data" means any and all information, data, and other content, in any form or medium, that is collected, submitted, posted, displayed, downloaded, or otherwise received from or provided, directly or indirectly, by Customer or a User by or through the eqtble Product.“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by eqtble for the eqtble Product.“Law” means any and all: (a) laws, statutes, regulations, ordinances, or subordinate legislation in force from time to time; (b) common laws; (c) orders, writs, judgments, injunctions, decrees, stipulations, awards, or determinations entered by or with any Regulatory Authority; and (d) directives, policies, guidelines, rules, standards, or orders made or given by a Regulatory Authority, of, in the case of items (a) through (d) above, any country, or other national, federal, commonwealth, state, provincial, or local jurisdiction.“Order Form” means an order form, quote or other similar document that sets forth the specific eqtble Product and pricing therefor, and that references this Agreement and is mutually executed by the parties, substantially in the form attached hereto as Exhibit A.“Regulatory Authority” means, as the context requires, any national, foreign, federal, state, county, city or local government, legislative, administrative, judicial or regulatory governmental authority.“Suspension Event” means (a) Customer’s account is overdue as described in Section 3.3 (Late Payments), (b) Customer is in breach of Section 2.4 (Customer Limitations) or Section 2.5 (Customer Responsibilities), or (c) Customer’s use of the eqtble Product risks material harm to the eqtble Product or others.“System Data” means data collected by eqtble regarding the eqtble Product, including data related to support services provided by eqtble to Customer and its Users, that may be used to generate logs, statistics and reports regarding the performance, availability, integrity and security of the eqtble Product.“User” means anyone that Customer allows to access the eqtble Product on Customer's behalf, who may include (a) employees, advisors and contractors of Customer and its Affiliates and (b) others if permitted in this Agreement, the Documentation or on an Order Form.
eqtble Product
Provision of eqtble Product.
(a) Subject to the terms and conditions of this Agreement, eqtble grants Customer a subscription-based, non-exclusive, non-sublicensable, and non-transferable right to access and use the eqtble Product identified in the Order solely for the following purposes (collectively, “Use”): (i) to perform the functions described in the Documentation, (ii) for its internal business purposes, and (iii) within the applicable standard of measurement for determining the permitted Use and calculating the fees due as set forth in the Order Form ("Charge Metrics"). eqtble will make the eqtble Product available to Customer pursuant to this Agreement, including the service level agreement attached in Exhibit B, which may be updated by Eqtble in its sole discretion from time to time.(b) Customer may permit Users to use the eqtble Product on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions while using the product, and for their compliance with this Agreement. Customer will ensure that Users keep their login credentials confidential and will promptly notify eqtble upon learning of any compromise of User accounts or credentials.
Affiliates. Any Affiliate of Customer will have the right to enter into a separate Order Form executed by such Affiliate and eqtble and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
Customer Data.
(a) eqtble will have the right to process, access, and use Customer Data solely to provide and maintain the eqtble Product and perform the services described under this Agreement. Use of Customer Data includes sharing Customer Data as Customer directs through the eqtble Product, but eqtble will not otherwise disclose Customer Data to third parties except as permitted in this Agreement. Between the parties, Customer is responsible for the content and accuracy of Customer Data.(b) eqtble will maintain the administrative, physical and technical safeguards to protect the security of Customer Data that are described in the eqtble security page located at https://security.eqtble.com/ (the “Security Page”) as may be updated by eqtble in its sole discretion, provided that such updates do not materially decrease the applicable protections, is hereby incorporated by reference and shall apply. Eqtble shall provide notice to Customer at the email provided in an Order Form or as a pop-up while using the eqtble Product, in eqtble's sole discretion, in the event that Eqtble determines that changes to the Security Page materially decrease protections applicable to Customer's use of the eqtble Product, within fifteen (15) days of such change.(c) To the extent eqtble processes any Personal Data (as defined in the DPA referenced below) on Customer’s behalf in the provision of the eqtble Product, the data processing addendum at https://www.eqtble.com/data-processing-addendum/ (“DPA”) as may be updated by eqtble in its sole discretion, is hereby incorporated by reference and shall apply, and the parties agree to comply with the terms of the DPA. For the purposes of the Standard Contractual Clauses (if applicable), Customer and its applicable Affiliates are each the data exporter. If it becomes necessary for the parties to enter into additional agreement or execute Standard Contractual Clauses, the parties agree to negotiate such agreements in good faith. If there is a conflict between the terms of this Agreement and the DPA, the terms of the DPA shall apply to the extent of such conflict.
Customer Limitations. Customer will not use the eqtble Product in any manner not expressly and specifically authorized by the Agreement, and will not cause or permit its Users to use the eqtble Product in any manner not expressly and specifically authorized by the Agreement. In particular, and without limitation, Customer will not directly or indirectly:
(a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the eqtble Product;(b) attempt to probe, scan or test the vulnerability of the eqtble Product;(c) bypass or breach the security or authentication measures of the eqtble Product without proper authorization, or access or use the eqtble Product other than by a User;(d) render any part of the eqtble Product unusable or damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the eqtble Product;(e) use or access the eqtble Product or any eqtble Confidential Information to develop a product or service that is competitive with eqtble’s products or the eqtble Product or any other purpose that is to eqtble’s detriment or commercial disadvantage, or engage in competitive analysis or benchmarking;(f) rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer the eqtble Product, in whole or in part, or otherwise make available the eqtble Product, in whole or in part, on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;(g) input, upload, transmit, or otherwise provide to or through the eqtble Product, any information or materials that are unlawful or injurious, or contain, transmit, or activate any malicious software;(h) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any eqtble Product or Documentation, including any copy thereof;(i) access or use the eqtble Product in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other eqtble customer), or that violates any Law;(j) access or use the eqtble Product for purposes of competitive analysis of the eqtble Product, the development, provision, or use of a competing software service or product or any other purpose that is to eqtble’s detriment or commercial disadvantage; or(k) otherwise use the eqtble Product outside the Use expressly permitted under this Agreement.
Customer Responsibilities.
(a) Customer acknowledges that eqtble’s provision of the eqtble Product is dependent on (i) Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form) and (ii) the accuracy and completeness of all information reasonably requested by eqtble. Customer will provide all such cooperation and information in a diligent and timely manner or as otherwise specified by eqtble. eqtble shall not be liable for any delays or other access issues arising out of the inaccurately or incompleteness of information provided by Customer or Customer's failure to timely provide eqtble with all necessary cooperation, access and information requested by eqtble.(b) Customer will (i) be responsible for all use of the eqtble Product under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the eqtble Product and notify eqtble promptly of any actual or suspected unauthorized access or use and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the eqtble Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and eqtble will have no liability for such failure (including under any service level agreement).
Suspension. eqtble may, in its sole discretion, suspend Customer’s and/or any one or more Users' access to the eqtble Product and related services due to a Suspension Event, but where practicable will give Customer prior notice so that Customer may seek to resolve the issue and avoid suspension. eqtble is not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Law. Once the Suspension Event is resolved to eqtble's reasonable satisfaction, eqtble will promptly restore Customer’s access to the eqtble Product in accordance with this Agreement.
Updates. Eqtble may, from time to time, modify, upgrade or enhance the eqtble Product, or issue a new version of the eqtble Product. Any modification, upgrade, enhancement or new release that eqtble makes generally available to all eqtble customers (each an “Update”) will be made available at the same time to Customer; provided Customer is materially in compliance with this Agreement at the time of the Update release. eqtble reserves the right to require payment of an additional commercially reasonable fee for any Major Release, at Customer's option to decline. For purposes hereof, an Update is considered to be a “Major Release” if it adds substantial new functionality or features to the eqtble Product or results in substantially improved performance of the eqtble Product or is otherwise separately priced and marketed by eqtble as a distinct, new product. Except as otherwise provided in writing by eqtble, any Update (including a Major Release), when delivered, shall become part of the eqtble Product and shall be maintained and otherwise be subject to all of the terms of this Agreement. Customer will not be required to purchase, implement or utilize Major Release components however Customer’s refusal to implement Major Releases may prohibit eqtble’s ability to provide other subsequent Updates or new features that are reliant upon those Major Release upgrades.
Monitoring of Use. Customer will monitor its own use of the eqtble Product and report all use in excess of the Charge Metrics. eqtble may continuously monitor the eqtble Product and any other services it provides, including monitoring to verify Customer’s use thereof is in compliance with the Agreement.
Third Party Products. The eqtble Product may include integrations with services and data made available by third parties that are accessed through the eqtble Product and are subject to the terms and conditions of those third parties. The Agreement does not apply to those services and data and they are not part of the eqtble Product.
Fees
Fees. Customer will pay eqtble the fees set forth in the Order Form. Except as otherwise specified in this Agreement, including any applicable Order Form, (a) fees are quoted and payable in United States dollars within thirty (30) days of receipt of an invoice, (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and (c) fees paid are non-refundable.
Overage Charges. If the actual usage of the eqtble Product during the applicable measurement period exceeds the permitted Charge Metric limitations, Customer will be charged for the overage as set forth in the Order or elsewhere in the Agreement.
Late Payment. eqtble may suspend access to the eqtble Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. Late payments may bear interest at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by eqtble in collecting such delinquent amounts.
Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of eqtble.
Proprietary Rights and Confidentiality
Proprietary Rights. As between the parties, eqtble exclusively owns all right, title and interest in and to the eqtble Product, System Data, Anonymized Data, and eqtble’s Confidential Information, including all Updates, Major Releases, or derivatives thereof, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the eqtble Product by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information
Anonymized Data. Customer acknowledges and agreed that, notwithstanding any other provision herein, eqtble may use or create Anonymized Data for internal and external purposes, including benchmarking, research, and marketing. Without limiting the foregoing, eqtble will own all right, title and interest in and to such Anonymized Data, including any reports, summaries, compilations, and analyses derived from the Anonymized Data.
Feedback. Customer may from time to time provide eqtble suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the eqtble Product. eqtble will have full discretion to determine whether or not to proceed with the development of any requested Updates, Major Releases, enhancements, new features or functionality. eqtble will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
Confidentiality.
(a) Confidentiality Obligations. The terms of this Agreement are the Confidential Information of each party and may not be disclosed by either party without prior written consent of the other party. Confidential Information of the Disclosing Party may be disclosed by the Receiving Party to the Receiving Party’s (i) attorneys, accountants, auditors, regulators, tax preparers, financial advisors and other agents, in each case who have a need to know such Confidential Information; (ii) actual and potential investors, acquirers or financing sources, including their professional advisors; and (iii) personnel and subcontractors or other third parties that will be providing services in connection with this Agreement; provided that such third parties are under an obligation to protect the confidentiality of such Confidential Information. If Receiving Party obtains access to Confidential Information of the Disclosing Party pursuant to this Agreement, the Receiving Party agrees: (i) to hold such Confidential Information in confidence and not to disclose the Confidential Information to any third party except as permitted by this Agreement; (ii) to disclose the Confidential Information only to its employees or contractors who are informed of their obligations of confidentiality; and (iii) to only disclose and use the Confidential Information in order to perform its obligations and exercise its rights under this Agreement or applicable Law. The Receiving Party will use at least the same degree of care to protect the Disclosing Party's Confidential Information from unauthorized disclosure, reproduction, use or access that the Receiving Party uses to protect its own Confidential Information, but not less than reasonable care. The Receiving Party will promptly notify the Disclosing Party of any loss or unauthorized use, disclosure, or reproduction of or access to the Disclosing Party’s Confidential Information of which it becomes aware and will take all reasonable steps to limit, stop or otherwise prevent such loss or unauthorized use, disclosure, reproduction or access.(b) Exceptions. The provisions of Section 4.4(a) will not apply to any information to the extent it: (i) is or becomes publicly available without breach of this Agreement; (ii) has been independently developed by Receiving Party without reference to Disclosing Party’s Confidential Information; or (iii) is rightfully received from a third party who is not under any obligation of confidentiality to the Disclosing Party. Nothing in this Agreement will prohibit Receiving Party from developing or having developed on its behalf, products, information, data concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information of the Disclosing Party, provided that Receiving Party does not violate any of its obligations under this Agreement in connection with such development.(c) Required Disclosures. Notwithstanding any provision to the contrary in this Agreement, if Receiving Party is legally obligated by a subpoena or court order to disclose Confidential Information of Disclosing Party, Receiving Party shall (i) give Disclosing Party prompt written notice of such requirement (unless legally prohibited) . and to allow the Disclosing Party the opportunity to seek a protective order or other appropriate remedy and (ii) disclose Confidential Information only to the extent legally required by such subpoena or court order and will use commercially reasonable efforts to seek from the entity to which such Confidential Information must be disclosed confidential treatment of such Confidential Information.(d) Return of Confidential Information. Upon written request by Disclosing Party, Receiving Party shall return or destroy, at Receiving Party’s reasonable discretion, the Disclosing Party's Confidential Information, including all copies thereof and materials incorporating such Confidential Information, whether in physical or electronic form. Each party may retain a copy of the other party’s Confidential Information as part of its standard backup procedures and for archival purposes or as otherwise required by Law or such party's document and data retention policies. (a) Injunctive Relief. Receiving Party acknowledges disclosure or use of the Disclosing Party’s Confidential Information in violation of this Section could cause irreparable harm to Disclosing Party for which monetary damages may be inadequate or difficult to ascertain. Each party has the right, in addition to all other rights and remedies, to seek injunctive relief for any violation of this Section by the other party, without posting bond or by posting bond at the lowest amount required by Law.
Warranties and Disclaimers
eqtble. eqtble represents and warrants that the eqtble Product will conform in all material respects with the Documentation. In the event of a breach of the foregoing warranty, eqtble will correct the deficiency at no additional charge to Customer. Customer must notify eqtble in writing within five (5) business days of identifying the deficiency or first use of the eqtble Product, whichever is sooner. If eqtble is unable to correct the deficiency within [sixty (60)] days of being provided notice, the breach of warranty will be deemed a material breach of this Agreement and Customer may elect to terminate this Agreement as set forth in Section 8.2(a) of this Agreement. If Customer elects to terminate this Agreement due to a material breach of the warranty in this Section 5.1, eqtble will provide Customer with a pro rata refund (based on the applicable termination date) of prepaid subscription fees attributable to the breaching eqtble Product, for breach of such warranty . The remedies set forth in this section will be Customer’s sole remedy and eqtble’s sole liability for breach of such warranty.
Customer. Customer represents and warrants that (a) it has all rights necessary to use Customer Data with the eqtble Product and grant eqtble the rights to Customer Data specified in this Agreement, without violating third-party intellectual property, privacy or other rights, and (b) Customer is, and will remain in compliance with, all applicable Laws.
DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. EQTBLE MAKES NO WARRANTY AND DOES NOT GUARANTEE ANY OUTCOME OR RESULTS RELATED TO CUSTOMER'S USE OF THE PRODUCT AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR INSIGHTS PROVIDED IN CONNECTION WITH THE EQTBLE PRODUCT. CUSTOMER ACKNOWLEDGES THAT THE EQTBLE PRODUCT, INCLUDING ALL UPDATES AND MAJOR RELEASES THERETO, IS BASED ON PREDICTIVE STATISTICAL MODELS, AND ARE INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S SYSTEMS AND PROCESSES. EQTBLE DOES NOT REPRESENT OR WARRANT THAT THE EQTBLE PRODUCT, INCLUDING ALL UPDATES AND MAJOR RELEASES THERETO, WILL BE ERROR-FREE AND CUSTOMER ACKNOWLEDGES THAT THE INSIGHTS PROVIDED BY THE EQTBLE PRODUCT DO NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL.
Indemnification
Indemnity by eqtble.
(a) eqtble will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the eqtble Product as permitted hereunder infringes a United States patent, United States copyright, or United States trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by eqtble) in connection with any such Claim; provided that (i) Customer will promptly notify eqtble of such Claim, (ii) eqtble will have the sole and exclusive authority to defend and/or settle any such Claim, provided that eqtble may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability, and (iii) Customer cooperates with eqtble in connection therewith. (b) If the use of the eqtble Product by Customer has become, or in eqtble’s opinion is likely to become, the subject of any claim of infringement, eqtble may at its option and expense (i) procure for Customer the right to continue using and receiving the eqtble Product as set forth hereunder; (ii) replace or modify the eqtble Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. (c) eqtble will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (i) compliance with designs, guidelines, plans or specifications provided by Customer; (ii) use of the eqtble Product by Customer not in accordance with this Agreement; (iii) modification of the eqtble Product by any party other than eqtble without eqtble’s express consent; (iv) Customer Confidential Information;(v) the combination, operation or use of the eqtble Product with other applications, portions of applications, product(s) or services where the eqtble Product would not by itself be infringing; or Customer's failure to take the required steps to ensure Updates are properly installed (clauses (i) through (vi), “Excluded Claims”). (d) This Section 6 states eqtble’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
Indemnification by Customer. Customer will defend eqtble against any Claim made or brought against eqtble by a third party arising out of or related to (a) the Excluded Claims, (b) Customer's breach of this Agreement, and (c) Customer's breach of applicable Laws. Customer will indemnify eqtble for any damages finally awarded against eqtble (or any settlement approved by Customer) in connection with any such Claim; provided that (i) eqtble will promptly notify Customer of such Claim, (ii) Customer will have the sole and exclusive authority to defend and/or settle any such Claim, provided that Customer may not settle any Claim without eqtble’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases eqtble of all liability and (iii) eqtble reasonably cooperates with Customer in connection therewith.
Limitation of Liability
Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF CONFIDENTIALITY OR THE LICENSE RESTRICTIONS OR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR, , ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM
Termination
Term. The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below (the "Term"). The initial term of each Order Form will begin on the effective date of such Order Form and will continue for the subscription term set forth therein ("Initial Subscription Term"). Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the Initial Order Form Term ("Renewal Subscription Term" together with the Initial Subscription Term, the "Subscription Term"), unless either party provides the other party with written notice of non-renewal at least thirty (30) days' prior to the end of the then-current Subscription Term. eqtble may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current Subscription Term, and such modified pricing will become effective thereafter on the effective date of the renewal.
Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable Law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
Effect of Termination.
(a) Customer’s right to use the eqtble Product, including any services associated therewith, will cease upon any termination or expiration of this Agreement. Except for eqtble's right under Section 2.3(a), Section 4.2, and Section 4.3 and each parties ongoing confidentiality obligations under Section 4.4, upon termination of this Agreement all rights and obligations will immediately terminate.(b) any terms or conditions that by their nature should survive such termination will survive, including the license restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
General
Export Compliance. Each party will comply with the export Laws of the United States, European Union and other applicable jurisdictions in providing and using the eqtble Product.
Publicity. Customer agrees that eqtble may refer to Customer’s name and trademarks in eqtble’s marketing materials and website; however, eqtble will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
Assignment; Delegation. Neither party may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns. In the performance of its obligations under this Agreement, eqtble shall have the right, in its sole discretion, to subcontract its rights and responsibilities to any third party, provided that eqtble shall remain responsible for the performance of any such third party.
Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
Governing Law. This Agreement will be governed by the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Each Party agrees that all legal proceedings arising out of or relating to this Agreement will be instituted in the United States District Court for Delaware. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO SUCH CONTROVERSIES.
Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, overnight delivery or email. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.
Entire Agreement. This Agreement comprises the entire agreement between Customer and eqtble with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by eqtble, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
Force Majeure. Neither Party will be liable for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including any action of a Regulatory Authority, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), pandemic, endemic, or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree. Except for Customer's payment obligations under this Agreement, the Parties’ obligations under this Agreement shall be postponed for such time as its performance is suspended or delayed on account thereof.
Government Terms. eqtble provides the eqtble Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the eqtble Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The eqtble Product was developed fully at private expense.
Interpretation. For purposes hereof, “including” means “including without limitation”.
Exhibit B
SLA
Availability Commitment.
The eqtble Product will be Available 99.5% of the time, measuredly on a calendar monthly basis (the “Availability Commitment”). “Availability” means that the eqtble Product is available to analyze Customer Data and provide insights via access to its dashboard. Availability measures will not include downtime resulting from:
Updates: Customer will receive prior notice by email or through the eqtble Product of eqtble’s upgrade windows for all Updates (excluding Major Releases), which will be scheduled between 5pm and midnight Eastern Time to the extent feasible. Downtime due to Updates will not exceed 2 hours per month.
Pre-scheduled maintenance periods: Customer will receive at least 24 hours prior notification by email of pre-scheduled maintenance periods. Maintenance shall be scheduled between 5pm and midnight Pacific Time . Downtime due to pre-scheduled maintenance will not exceed 2 hours per month.
Emergency maintenance periods: Customer will receive prior notification by email on a commercially reasonable efforts basis. These maintenance periods will involve applying critical security patches and other emergency repairs to the eqtble infrastructure.
The Availability Commitment does not apply to any downtime of the eqtble Product that results from:
Account suspension or termination due to Customer’s breach of the Agreement;
Disengagement of functionality of the eqtble Product due to Customer’s request;
Force Majeure Events; or
Customer’s or its service provider’s equipment, software or other technology.
eqtble will provide Customer with reports on Availability upon request.
Credit.
If eqtble fails to achieve the above Availability for the eqtble Product in any given month, Customer may claim a credit for such month ("Availability Credit"). The Availability Credit is calculated based on the percentage Availability per month as set forth on the table below, multiplied by the annual subscription fee for the eqtble Product paid by Customer, divided by twelve (12).
PERCENTAGE AVAILABILITY PER MONTH | CREDIT
99.5-100.0 | 0%
97.0-99.49 | 4%
94.0-96.99 | 6%
92.0-93.99 | 10%
Below 92.0 | 50%
Customer will not be entitled to a credit if it is in breach of this Agreement, including its payment obligations. To receive a credit, a Customer must file a claim for such credit within five (5) days following the end of the month in which the Availability Commitment was not met by contacting eqtble at support@eqtble.com with a complete description of the downtime, how Customer was adversely affected, and for how long.
The credit remedy set forth in this Service Level Agreement is Customer’s sole and exclusive remedy for the unavailability of the eqtble Product.
Customer Support.
Eqtble will offer standard technical support to Customer during eqtble's business hours as described in this section.
eqtble live technical support business hours will start at 9:00 am Eastern Time and run until 5:00 pm Eastern Time on weekdays. Technical support can be contacted via email at support@eqtble.com or via shared channels in the customer communication platform.
Communication Channels:
Email: support@eqtble.com
Communication tool: Shared eqtble Skype, Teams, Slack channel, or other methods of which eqtble informs Customer
Live technical support will not be available on Christmas Day (December 25) and New Year’s Day (January 1). Limited technical support will be available during the hours listed above during eqtble holidays. The current eqtble holidays are set forth below:
Presidents Day (third Monday of February)
Memorial Day (last Monday of May)
Independence Day (July 4)
Labor Day (first Monday of September)
Thanksgiving Day (fourth Thursday in November)
Christmas Eve (December 24)
New Year’s Eve (December 31)
