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© 2022 PowderKeg Labs, Inc. o/a GetQuorum
THESE MASTER TERMS AND CONDITIONS ("Agreement") apply to all proposals, service orders, service tickets, work orders, service level agreements, and other contracts, agreements and invoices between Powderkeg Labs Inc. d/b/a GetQuorum ("GetQuorum") and any customer (the "Customer") specifically identified in an Instrument that is signed by both GetQuorum and the Customer, to the extent that this Agreement is expressly incorporated by reference in any such Instrument.
READ THESE MASTER TERMS OF SERVICE (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION OR OTHERWISE USING THE SERVICES. BY ACCEPTING THIS AGREEMENT THROUGH A PROPOSAL, ORDERING DOCUMENT OR OTHER DOCUMENT THAT INCORPORATES THIS AGREEMENT (THE “ORDER”), BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY OTHERWISE USING THE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
1.1 Purpose. This Agreement sets forth the terms and conditions under which GetQuorum agrees to provide (i) certain hosted “software as a service” (“Software Services”) for its software application (together with any applicable documentation thereto, and programming and user interfaces therefor, the “Platform”) to Authorized Users, as further set forth on each Order and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, virtual hosting, printing and mailing, backup and recovery, and change management (“Professional Services” together with Software Services, the “Services”) related to Customer’s access to, and use of, such Software Services and each Platform, as further set forth on each Order.
1.2 The Services; Access and Use License. Subject to the terms and conditions of this Agreement, during the term specified in the applicable Order (the “Term”), GetQuorum shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to the Platform, and (ii) Customer, the Professional Services. Subject to the terms and conditions of this Agreement and the applicable Order, during the Term, GetQuorum hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non-transferable, worldwide license to access and use the Platform, solely for internal business purposes as set forth herein.
1.3 Subscription Services. Each applicable Order shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, user limitations, fees, subscription term and other applicable terms and conditions.
1.4 Professional Services. Each applicable Order shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
1.5 Changes to Platform. GetQuorum may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of GetQuorum’s products or services to its customers, (b) the competitive strength of, or market for, GetQuorum’s products or services, (c) the Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
2.1 Authorized Users. Customer may allow such number of Customer’s employees and/or independent contractors as is indicated on an Order to use the applicable Platform on behalf of Customer as “Customer Users.” Additionally, if applicable to the Platform, Customer may allow such number of designees (“Vendor Users” and together with Customer Users, “Authorized Users”) and, subject to GetQuorum’s then-current Vendor Terms of Use, of its vendors (“Vendors”) as is indicated on an Order, and their personnel, to access the Platform in connection with such Vendor’s activity with Customer through the Platform. Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the Platform.
2.2 Authorized User Conditions to Use. As a condition to access and use of the Platform, (i) each Authorized User shall agree to abide by the terms of GetQuorum’s end-user terms of use which it may adopt from time to time, (ii) Customer Users shall agree to abide by the terms of this Agreement, or a subset hereof, and (iii) Vendor Users shall agree to abide by the terms of the then-current GetQuorum Vendor Terms of Service applicable to the Platform, and, in each case, Customer shall ensure such compliance. Customer shall immediately notify GetQuorum of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation, and shall be liable for any breach of the foregoing agreements by any Authorized User.
2.3 Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its GetQuorum account, passwords (including but not limited to administrative and user passwords) and files. GetQuorum is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
3.1 Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Platform or any software, documentation or data related to the Platform (“Software”); (ii) modify, translate, or create derivative works based on a Platform or any Software; (iii) use a Platform or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of GetQuorum, and Customer will comply with Section 4 with respect thereto.
3.2 Customer Compliance. Customer shall use, and will ensure that all Authorized Users use, each Platform, Software, and the Services in full compliance with this Agreement, GetQuorum’s end-user terms of use and all applicable laws and regulations. Customer represents and warrants that it (i) has accessed and reviewed any terms of use or other policies relating to a Platform provided by GetQuorum, (ii) understands the requirements thereof, and (iii) agrees to comply therewith. GetQuorum may suspend Customer’s account and access to each Platform and performance of the Services at any time and without notice if GetQuorum believes that Customer is in violation of this Agreement. Although GetQuorum has no obligation to monitor Customer’s use of a Platform, GetQuorum may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.
3.3 Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like. For greater certainty, no proprietary equipment of GetQuorum is required to access or otherwise use the Platform
4.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of GetQuorum includes non-public information regarding features, functionality and performance of the Platform and Software. Confidential Information of Customer includes non-public data (including personal information) provided by Customer to GetQuorum to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored on the Platform for Customer (“Customer Data”), but explicitly excludes Vendor Information (defined below). The terms and conditions of this Agreement including all pricing and related metrics, are GetQuorum’s Confidential Information.
4.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
4.3 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
4.4 Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
4.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
5.1 Ownership. Customer shall own all right, title and interest in and to the Customer Data. GetQuorum shall own and retain all right, title and interest in and to (i) the Platform, Software and the Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Customer acquires any right, title or interest in any Services IP, Customer hereby assigns all of its right, title and interest in such Services IP to GetQuorum.
5.2 Customer Data and Vendor Information License. Customer hereby grants to GetQuorum a non-exclusive, transferable, sub-licensable, worldwide and royalty-free license to use and otherwise exploit (i) Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve the Platform, Software and the Services, both during and after the Term, and (ii) Vendor Information for any lawful purpose. “Vendor Information” means any Vendor list or Vendor contact information that is provided to GetQuorum by Customer or uploaded to the Platform by or on behalf of Customer. For the avoidance of doubt, GetQuorum may use, reproduce and disclose Platform, Software and Services related information, data and material that is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by GetQuorum. It is Customer’s sole responsibility to back-up Customer Data during the Term.
5.3 No Other Rights. No rights or licenses are granted except as expressly set forth herein.
6.1 Fees. Customer will pay GetQuorum the then-applicable fees described in an Order, as applicable, in accordance with the terms set forth therein (“Fees”), including, for the avoidance of doubt, any fees incurred through Customer’s use of a Platform exceeding a services capacity parameter specified on an Order.
6.2 Renewal Fees. Upon the commencement of each renewal term, Customer shall be liable to GetQuorum for payment of a renewal fee as set out in the applicable Order (the “Renewal Fee”). Customer hereby consents to GetQuorum charging any such Renewal Fee to the credit card, or other payment method, associated with Customer’s account without need to provide any further notice or receive any further consent.
6.3 Payment. GetQuorum may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by GetQuorum thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Order). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, GetQuorum may suspend Services in the event of payment delinquency.
6.4 Payment Disputes. If Customer believes that GetQuorum has billed Customer incorrectly, Customer must contact GetQuorum no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to GetQuorum’s customer support department or the applicable Account Manager.
6.5 Taxes. Customer shall pay, and shall be labile for, all taxes relating to GetQuorum’s provision of the Services hereunder. GetQuorum shall pay, and shall be liable for, taxes based on its net income or capital.
6.6 No Deductions or Setoffs. All amounts payable to GetQuorum hereunder shall be paid by Customer to GetQuorum in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
6.7 Subpoena Expenses. If GetQuorum has to provide information in response to a subpoena related to Customer’s account and arising from a third-party claim, then GetQuorum may charge Customer for GetQuorum’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.
7.1 Term and Renewal. Subject to the termination provisions set forth below, Services provided under an Order shall be provided for the applicable Term and subject to the renewal requirements provided for under the applicable Order.
7.2 Notice of Non-Renewal. Unless otherwise specified in an Order, to prevent renewal of a Customer’s subscription, Customer or GetQuorum must give written notice of non-renewal at least forty-five (45) days prior to the expiration of the then-current Term set out in the applicable Order.
7.3. Early Cancellation. Customer may choose to cancel its subscription early at its convenience provided that, GetQuorum will not provide any refunds of prepaid fees, and Customer will promptly pay all unpaid fees due through the end of the Term set out in the applicable Order. See the 'Notice of Non-Renewal' section for information on how to cancel your subscription.
7.4 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Software Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Term. Fees are otherwise non-refundable.
7.5 Survival. Sections 3.1, 4–6, 7.2, 7.4, and 9–20 shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
8.1 Warranties. GetQuorum represents and warrants that it will perform the Professional Services in a professional and workmanlike manner. Each party represents and warrants that it has the legal power to enter into this Agreement. Additionally, Customer warrants that (i) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Customer Data that is placed on, transmitted via or recorded by the Platform and the Services; (ii) the provision and use of Customer Data as contemplated by this Agreement and the Platform and the Services does not and shall not violate any Customer’s privacy policy, terms of use or other agreement to which Customer is a party or any law or regulation to which Customer is subject to; and (iii) no Customer Data will include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information.
8.2 Disclaimer of Warranties and Limitation of Liability. THE PLATFORM, SOFTWARE AND SERVICES ARE PROVIDED “AS IS” or “AS AVAILABLE” BASIS. GETQUORUM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN AN ORDER, GETQUORUM DOES NOT WARRANT THAT ACCESS TO THE PLATFORM, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES GETQUORUM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, NOR DOES IT MAKE ANY WARRANTY THAT THE PLATFORM, SOFTWARE AND SERVICES, COMPLY WITH APPLICABLE LAW.
IN NO EVENT SHALL (I) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER AND VENDORS HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU BUT SHALL INSTEAD APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Customer will indemnify and hold GetQuorum, its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by the Customer of the Customer’s representations and warranties; or (iii) a claim arising from the breach by the Customer or the Authorized Users of this Agreement, provided in any such case that GetQuorum (a) gives written notice of the claim promptly to the Customer; (b) gives the Customer sole control of the defence and settlement of the claim (provided that the Customer may not settle or defend any claim unless the Customer unconditionally releases GetQuorum of all liability and such settlement does not affect GetQuorum’s business or Service); (c) provides to the Customer all available information and assistance; and (d) has not compromised or settled such claim.
GetQuorum shall indemnify and hold the Customer and its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by GetQuorum of its representations or warranties; or (iii) a claim arising from breach of this Agreement by GetQuorum; provided that you (a) promptly give written notice of the claim to GetQuorum; (b) give GetQuorum sole control of the defence and settlement of the claim (provided that GetQuorum may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to GetQuorum all available information and assistance; and (d) have not compromised or settled such claim. GetQuorum shall have no indemnification obligation, and you shall indemnify GetQuorum pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware, or business process(es).
Without regard to conflict of law principles, this Agreement will be governed by and construed in accordance with the laws of the jurisdiction of Customer’s principal place of business as follows: (i) the State of Florida for Customers located in the State of Florida, (ii) the State of Delaware for Customers located in the United States other than the State of Florida, (iii) the Province of Ontario for Customers located in Canada, (iv) the Province of Ontario for all Customers located in other jurisdictions. Any legal action or proceeding arising under this Agreement will be brought exclusively in the venue corresponding with the appropriate governing law. The parties irrevocably consent to the personal jurisdiction and venue therein. Some jurisdictions restrict limitations of warranties or liabilities. Therefore, certain limitations herein may not apply to Customer. The terms of the U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply.
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided in an Order. All notices, consents and other communications between the parties under an Order will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
GetQuorum is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.
No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever.
GetQuorum is not a law firm, does not provide legal advice, and is not a substitute for a law firm. Using any of the Services, including the Platforms, does not constitute legal advice or create an attorney-client relationship.
Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. GetQuorum may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with the Platform shall not be deemed a sub-licensee under this Agreement.
The waiver by either Party of any breach of any provision of the Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with the Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of the Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
GetQuorum may update this Agreement from time to time without further notice. The most current version will take effect upon posting at https://www.getquorum.com/terms-of-service. Except as authorized by the Agreement, no provision of any Order may be amended without the parties’ mutual written agreement and signed by Customer. By subscribing for, accessing, or using any Services provided by GetQuorum, Customer agrees, without limitation or qualification, to be bound by this Agreement.
This Agreement, together with any Order entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. In the event of a conflict between this Agreement and any Order, such Order shall prevail unless otherwise expressly indicated in this Agreement or such Order.
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© 2022 PowderKeg Labs, Inc. o/a GetQuorum