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.
eqtble 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.
“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.
(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.
(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.
(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.
(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).
(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.
(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.
(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.