Terms of Usage

QuantumID Technologies Inc.
Terms of Usage

SERVICE.

License. During the term of this Agreement and subject to all terms and conditions set forth herein, Company will make the Service available to Customer and hereby grants to Customer a nonexclusive right and license: to use the Software, download, install components (if any); to access and use the Service and Results through a web-based interface; and to permit identified Users to access and use the Service under its Account. The Licensed Materials may be used only in unmodified form and solely for Customer’s internal business purposes. Customer’s access and use of the Licensed Materials shall comply with all other conditions set forth herein (such as, for example, restrictions regarding the number or identity of authorized Users, data formats, size limits, time limits, use limitations or prohibited uses). From time to time, Customer may (at its discretion) provide Feedback to Company.

Account. Company may provide Customer with access credentials (and/or a mechanism that permits Customer to specify access credentials) as needed to identify, authorize and designate roles for its employees or other individuals who will be registered users (collectively, Users), who will have rights (as appropriate to their roles) to establish, administer, configure, manage and use the Service through a Customer-specific account (Account). Customer is responsible for maintaining the confidentiality of all Account information (including access credentials) and for all User activities under its Account. Customer agrees to keep all Account information up-to-date and to notify Company immediately of any unauthorized use of its Account.

Support. Using commercially reasonable efforts, Company may provide Customer with initial training and other assistance to access, configure, verify and initiate operation of the Service; provide Customer with technical support for the Service during normal business hours (which may include professional services and technical support); and endeavor to analyze and resolve material errors.

Systems. (Applicable for Non Cloud / Customer Hosted Deployment) Customer is responsible for acquiring all (a) servers, mobile devices, storage, software, databases, network and communications systems and services needed to access and use the Service and (b) backup, recovery, network security and maintenance services for its systems. Without limiting the foregoing, Customer is responsible for backing-up or otherwise protecting all information stored on its systems prior to accessing or using the Service or any Software or downloading Results.

Professional Services. From time to time, Customer may request and Company may agree to provide certain implementation, integration, data analysis, development, training or other professional services related to the Service (Work). Company agrees to undertake and use commercially reasonable efforts to complete the Work as described in the corresponding Statement of Work. Company grants Customer a nonexclusive, non-transferable right and license (without right to sublicense) to use the Deliverables solely in conjunction with its authorized use of the Service, subject to the terms of this Agreement and other rights or restrictions set forth in the Statement of Work.

CONFIDENTIALITY.

Scope. The term Confidential Information means all trade secrets, know-how, inventions, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement. The restrictions on use and disclosure of Confidential Information will not apply to any information the receiving party can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such information. For clarity, Customer Data and Results are the Confidential Information of Customer, and the Licensed Materials and pricing information are the Confidential Information of Company.

Confidentiality. Except for the specific rights granted by this Agreement, and except for disclosures that are necessary to comply with any legal, regulatory, law enforcement or similar requirement or investigation, the receiving party shall not access, reproduce, use or disclose any of the other’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information from unauthorized access, use and disclosure (including by ensuring that its personnel who access any Confidential Information have a need to know for the permitted purpose and are bound by written obligations that are at least as protective as this Agreement). Each party shall be responsible for any breach of confidentiality by its personnel (including Users, in the case of Customer). Promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, audit, financing transaction or due diligence inquiry.

Security. During the term of this Agreement, each party agrees to maintain its systems secure against hacking, breach of firewalls, viruses and other unauthorized access and usage by third parties using technologies, tools and procedures that are consistent with good industry standards.

PROPRIETARY RIGHTS.

Customer. Customer hereby grants Company a nonexclusive right and license: to access, copy, store, process, distribute, transmit, display and otherwise use Customer Data to provide the Service to Customer and Users; and to copy, store and use Customer Data and Results to develop, improve, extend and test the Service and to design, develop and produce Analytics; and to market and promote Company and the Service using Analytics (but only in a manner that does not disclose any Customer Data or Results, or the identity of Customer or any User). Except for the foregoing, no other right, license or option is granted by Customer, no other use is permitted by this Agreement and (as between the parties) Customer (or the applicable User) owns and retains all rights, title and interests (including patents, copyrights, trade secrets and trademarks) in and to the Customer Data and Results.

Company. Except for the limited rights and licenses expressly granted hereunder, no other right, license or option is granted, no other use is permitted and (as between the parties) Company owns and retains all rights, title and interests (including patents, copyrights, trade secrets and trademarks) in and to the Service (including the underlying technology platform), Software and other Licensed Materials. Customer agrees that Company is free to use the Feedback, and all generalized knowledge, expertise know-how and technologies related to or acquired in providing the Service, in any manner for all purposes (including developing new or improved products and services).

Restrictions. Customer shall not, directly or indirectly (a) use any Confidential Information of Company to create any software, platform, service or documentation that is similar to any of the Licensed Materials, (b) attempt to access any component of Company’s technology platform or to disassemble, decompile, reverse engineer or otherwise discover any source code or underlying organization, structures, ideas or algorithms of the Software, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use any Licensed Material in any time-share, service bureau or similar arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify any of the Licensed Materials, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to do any of the foregoing.

Third Party Requirements. The Licensed Materials may interface, inter-operate, link or be delivered with or include data, content, software or other technology (In-Licensed Material) that is licensed from and owned by third parties (In-Licensors), the distribution or use of which may be subject to additional or different terms set forth in the applicable terms of service, policies, rules or licenses (In-Licenses). Customer unconditionally agrees that In-Licensors (a) make no representation or warranty concerning the In-Licensed Materials or Licensed Materials, (b) have no obligation or liability to Customer as a result of this Agreement and (c) with regard to their own In-Licensed Materials, are intended third party beneficiaries of this Agreement. The In-Licensed Materials and corresponding In-Licenses are identified in Company’s documentation.

LIMITED WARRANTIES AND DISCLAIMERS.

Customer. Customer warrants to Company that its (and its Users’) use of the Service, Results and other Licensed Materials will be highly ethical and comply with good business practices, and that the access, transfer, collection, processing, distribution and use of Customer Data in accordance with this Agreement complies with and will not violate applicable laws, regulations, rules or proprietary rights (including without limitation, rights regarding privacy, publicity and defamation).

Company. Company warrants to Customer that all Work will be provided in a professional manner and that it will use commercially reasonable efforts to maintain the Service available at all times, subject to downtimes for scheduled and unscheduled maintenance, upgrades, repairs and emergency outages. Company will not be responsible for any delay, degradation or failure in the Service resulting from or attributable to (a) failures in any data provider’s services, networks or systems not a part of the SmartKargo Infrastructure (b) Customer’s or any User’s negligence, acts or omissions or (c) any force majeure or other cause beyond its reasonable control.

Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE WORK, SERVICE AND OTHER LICENSED MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. FOR CLARITY, COMPANY AND ITS LICENSORS DO NOT WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE WORK, SERVICE, RESULTS OR OTHER LICENSED MATERIALS WILL BE ERROR-FREE, UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (D) THE WORK, SERVICE, RESULTS OR OTHER LICENSED MATERIALS WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS OR THAT ANY RESULT OR OUTCOME CAN BE ACHIEVED. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE WORK, SERVICE, RESULTS AND OTHER LICENSED MATERIALS, INCLUDING

WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

INDEMNIFICATION.

Customer. Customer agrees to defend Company against any demand, suit, action or other claim by any third party that is related to any breach of Customer’s obligations or warranties under this Agreement, and to indemnify Company for liabilities (as specified in settlements or judgment awards) that result from such claims.

Company. Company agrees to defend Customer against any demand, suit, action or other claim by any third party that the Service or any Deliverable violates its intellectual property or proprietary rights, and to indemnify Customer for liabilities (as specified in settlements or judgment awards) that result from such claims. If the Service or any Deliverable becomes or, in Company’s opinion, is likely to become the subject of an injunction preventing its use as contemplated herein, Company may, at its and expense (a) obtain the rights needed to continue providing the Service or Deliverable, or (b) replace or modify the Service or Deliverable without substantially compromising its principal functions. If (a) and (b) are not reasonably available, then Company may (c) terminate this Agreement upon written notice to Customer and refund to Customer any prepaid fees, pro-rated for the remainder of the prepaid period. The foregoing states the entire liability of Company, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property or proprietary rights by the Licensed Materials or Work, any part thereof or their use or operation.

Exclusions. Company shall have no liability or obligation hereunder with respect to any claim attributable to (a) any use of the Licensed Materials not strictly in accord with this Agreement, or in an application or environment or on a platform or with devices for which it was not designed or contemplated or (b) alterations, combinations or enhancements of the Licensed Materials not created by Company.

Conditions. The indemnifying party’s obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnified party may participate in the defense at its sole cost and expense. The indemnifying party will not enter into any settlement (other than for payment of money subject to its indemnity) that adversely affects the indemnified party’s rights or interests without its prior written approval, not to be unreasonably withheld. The indemnifying party shall not be responsible for any settlement it does not approve in writing.

LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, AND EXCEPT FOR ANY BREACH OF SECTION 3 (CONFIDENTIALITY) AND EXCEPT FOR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 6 (INDEMNIFICATION), IN NO EVENT SHALL COMPANY (OR ITS LICENSORS) OR CUSTOMER BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COST TO PROCURE SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL

DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (C) AGGREGATE DAMAGES IN EXCESS OF THE FEES

PAID TO COMPANY DURING THE PRIOR 12 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND

SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.