quantilope Inc., Master Service Terms and Conditions

These Master Service Terms and Conditions (the “Agreement”) are made and entered by and between quantilope, Inc., a Delaware corporation with a place of business at 25 Broadway, 10th Floor, New York, NY 10004 (“quantilope”) and the organization indicated on the applicable Order Form or such organization otherwise agreeing to the terms of this Agreement (“Customer”). quantilope and Customer are also each referred to under this Agreement individually as a “party,” and together as the “parties.” The parties agree as follows:

1. DEFINITIONS.

Account means the company account for Customer’s use of the Platform.

Agreement means these Master Service Terms and Conditions, including its annexes, exhibits and any documents incorporated herein by reference.  

Affiliates means, with respect to any party hereto, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such party, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of party whether through the ownership of voting securities, by contract or otherwise. A Customer Affiliate may enter into an Order Form directly with quantilope under this Agreement by a mutually executed Order Form or Order Form that references this Agreement. In such event: (i) the Customer Affiliate will be bound by the terms of this Agreement and will be fully responsible for its liabilities and obligations under the applicable Order Form; and (ii) all references to “Customer” in the Agreement will be deemed references to the Customer Affiliate set forth on the Order Form for purposes of defining the rights and obligations of the parties hereunder.

Cause means (a) either party’s material breach of this Agreement or an Order Forms that remains uncured for more than thirty (30) days; (b) Customer’s failure to pay invoices within thirty (30) days after the delivery of such invoice to Customer; (c) either party’s failure to comply with the confidentiality obligations set forth herein; and/or (d) either party’s failure to comply with any applicable laws, rules or regulations (including those relating to the use and collection of Personally Identifiable Information).

CCPA means the California Consumer Privacy Act.

Customer means the contracting party identified in the caption or in the applicable Order Form (unless otherwise expressly set forth in the applicable Order Form).

Customer Data means all data which Customer provides to quantilope in connection with the Services. For clarity, Customer Data shall include Data Sets.

Customer Materials means (a) any content, data, information, links, images, works of authorship, and other materials submitted by or for Customer to quantilope through the Platform or otherwise for use in connection with the Projects and Services, including without limitation Customer Data, questionnaires created by Customer, and logos of Customer or any third party, but excluding quantilope Materials; and (b) Reports and Data Sets. For clarity, the templates of the Reports or data in the Reports not provided by Customer or Panelists specifically in response to a Project for Customer are not Customer Materials and shall be deemed quantilope Materials.

Confidential Information means any business, technical, and financial information designated in writing as confidential, or disclosed in a manner that a reasonable person would understand the confidentiality of the information. “Confidential Information” does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no fault on the part of the receiving party, (c) is disclosed to the receiving party without restriction by a third party without breach of any separate nondisclosure obligation, (d) is independently developed by the receiving party, or (e) is expressly requested to be disclosed by the disclosing party (solely to the extent expressly requested).

Data Set means the set of answers to a survey generated by a single survey participant in connection with a Project, including, but not limited to, within the scope of the Panel Services.

Data Set Collection Limit means the maximum number of Data Sets collected per Project.

Documentation means any user guide, help information, and other documentation and information regarding the Platform that is delivered by quantilope to Customer in electronic or other form.

Feedback means any and all suggestions, ideas, enhancement requests, recommendations or other information provided by Customer or any third party relating to any quantilope products or services.

Fees means the fees charged by quantilope for the Services as identified on each Order Form.

inColor Platform means quantilope’s qualitative, web-based software solution accessible via https://my.quantilope.us/, or any successor thereto, including all components and functions relating thereto and all updates and derivatives thereof provided by quantilope.

Intellectual Property Rights means all rights in know-how, copyrights, trademarks, patents, patent applications (including reissues, renewals, continuations, continuations-in-part, or divisions of any patent or patent application), trade secrets, instructions, including all improvements, modifications, derivatives, copies, and embodiments thereof.

Malicious Software means any virus, worm, “back door”, Trojan horse or similarly harmful code.

Managed Services (or Consulting Services) means additional managed services performed by quantilope and specified on an Order Form as “Managed Services” or “Consulting Services”, which may include study setup, data cleaning, and in-person presentations.

Order Form means written or electronic orders entered into by the parties that reference this Agreement.

Panel means a group of individual survey participants from whom survey responses will be collected in connection with a Project. Each individual survey participant is a Panelist.

Panel Services means quantilope’s services relating to the collection of survey data from a Panel in connection with any Project.

PII means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. For the avoidance of doubt, PII includes any information that can be associated with or traced to any individual, including an individual’s name, address, telephone number, e-mail address, credit card information, social security number, or other similar specific factual information, regardless of the media on which such information is stored (e.g., on paper or electronically).

Platform means quantilope’s web-based software solution accessible via app.quantilope.com, or any successor thereto, including all components and functions relating thereto and all updates and derivatives thereof provided by quantilope. If designated in an applicable Order Form, Platform shall include the inColor Platform.

Project means a market research study conducted via Platform for or by Customer. The types of Projects Customer may conduct will be set forth in the applicable Order Form.

Project Contingent means the maximum number of Projects that Customer may conduct as specified (either directly or indirectly through Project Credits in connection with a Project Credit rate card) on the applicable Order Form.

Project Data means any data (including without limitation, Project questions, survey related data, chart data, etc.), analysis, results, and other content stored in the Platform about Projects, excluding Data Sets.

quantilope means quantilope, Inc.

quantilope Materials means the Platform, Services, Documentation, Feedback, Project Data, quantilope’s Intellectual Property, and all other tangible or intangible materials (including hardware, software, source code, documentation, methodologies, know how, processes, ideas, designs of reports, charts, and dashboards, inventions, systems, interfaces, utilities, forms, techniques, methods, algorithms, information, implementations and, concepts, technologies and data) provided or used by or on behalf of quantilope in connection with the Services, including all improvements, modifications, enhancements thereto, and derivatives thereof. Without limiting the generality of the foregoing, quantilope Materials includes: (a) any programming or code objects or methods that are used in developing or that are embodied in the Platform or any Project Data or other materials prepared by quantilope; or (b) any software code and/or a portion of code developed by or on behalf of quantilope.

Reports means all analysis, results, data, images, visualizations, pictures and other graphics generated by and based specifically on Customer’s use of the Platform.

Service Term means the period of time identified on each Order Form, for which quantilope has agreed to provide, and Customer has committed to pay for, the applicable Service.

Services means access to the Platform, Managed Services, and/or Panel Services to the extent purchased by Customer pursuant to one or more Order Forms (each, a “Service” and collectively, the “Services”).

User means an employee, contractor, or other individual authorized by Customer to use and access the Platform on Customer’s behalf.

User Identifier means a specific, personal identifier assigned to a User for use of the Platform.

2. QUANTILOPE SERVICES.

2.1 Order Forms. This Agreement will be implemented through one or more Order Forms. Any additional terms or changes to the terms of this Agreement within an Order Form will apply only to the Services described therein. quantilope may provide the Services for Panel Services and Managed Services directly or using its affiliates, contractors or other third-party service providers. A termination of an Order Form between quantilope and Customer will not terminate or affect any other Order Forms with such same Customer, unless expressly agreed upon by the parties.

(a) Platform. Customer’s use of the Platform will be in accordance with the type and quantity of Services that Customer purchases pursuant to an Order Form. Terms regarding the scope of Customer’s Services will be set forth in an Order Form (including the Service Term, Project Contingent, geographic scope, and number of Users). quantilope may, in its reasonable discretion, update the Platform from time to time.

(b) Contingents. A Project will count toward the Project Contingent once ten (10) Data Sets are collected. Unless otherwise stated in the applicable Order Form, the Data Set Collection Limit per Project is five thousand (5,000) Data Sets. If additional Data Sets beyond the Data Set Collection Limit are collected in one Project without quantilope’s prior approval, quantilope, in its sole discretion, (i) may treat all Data Sets beyond the Data Set Collection Limit as part of an additional, stand-alone Project that will count toward the Project Contingent or (ii) may suspend the data collection.

(c) Data Access. Subject to the terms and conditions of this Agreement, Customer may (a) access the Project Data for any given Project through the Platform during the term of the Order Form relating to such Project and (b) export Data Sets and certain Project Data, including a survey’s text and information about a Customer’s Panel, using the tools available through the Platform during the term of the Order Form relating to such Project. Customer expressly acknowledges and agrees that, after expiration or termination of all Order Forms, quantilope shall have the right to delete Customer’s Project Data immediately without any liability to Customer.

(d) Account Access. To establish an Account, Customer must disclose to quantilope all registration data requested by quantilope. After the parties enter into an Order Form for access to the Platform, quantilope shall provide Customer with User Identifiers for its Users. From time to time, Customer may invite additional Users to access the Platform (provided that doing so does not cause Customer’s total number of Users to exceed the number of Users specified in the applicable Order Form). Customer shall (and shall cause its Users to) treat these User Identifiers as quantilope’s Confidential Information. Customer shall be solely responsible for maintaining the security of Customer’s User Identifiers and shall be liable for any damages, losses, or harm to Customer, quantilope, any third party, or its or their equipment, Project Data, or software resulting from unauthorized access to, or use of, the Platform caused by Customer’s failure to maintain the security of such User Identifiers. A User Identifier shall only be assigned to and usable by one (1) User. An User may not simultaneously use its User Identifier across multiple end devices. Customer shall be obligated to inform quantilope without undue delay if a User Identifier assigned to Customer or any of its Users is being used by any unauthorized persons.

(e) Accessibility. quantilope will use commercially reasonable efforts to make the Platform accessible ninety-eight percent (98%) of the time in a given month, excluding scheduled maintenance or downtime resulting from Customer Data or third-party services. quantilope will inform Customer, by email (or other prompt means if email is unavailable), of any service disruption, unless such disruption is of an insignificant nature (less than one (1) hour). quantilope will use commercially reasonable efforts to restore service as soon as reasonably practicable and will inform Customer by email (or other prompt means if email is unavailable) once service is restored. Technical Support or Helpdesk will be available by email during weekday office hours from 9:00 a.m. to 6:00 p.m. Eastern time, Monday to Friday. quantilope, at its sole discretion, may plan scheduled maintenance which will be communicated by email to Customer at least twenty-four (24) hours in advance with notice of how many hours of downtime are expected.

(f) inColor Platform. quantilope shall provide access to the inColor Platform to Users, if specified in the applicable Order Forms.

2.2 Managed Services. To the extent quantilope provides Managed Services, the nature and scope of the Managed Services, the term and the duration for which such services shall be provided, the amount and payment schedule of all fees payable by Customer for any such services, as well as any additional terms and conditions relating thereto shall be set forth in the applicable Order Form or by email. Customer agrees and acknowledges that in order to provide the Managed Services, quantilope is dependent upon the support and cooperative assistance of Customer. Customer shall be obligated to fully and punctually provide all requisite tools and equipment, information, and documents, and in the requisite quantity, to the employees of quantilope or any third parties retained for rendering the Managed Services. Unless otherwise stated in the applicable Order Form, the parties may only terminate Managed Services (a) for Cause or (b) if rendering the Managed Services is or becomes infeasible or impracticable (as determined by quantilope in its sole discretion). Unless otherwise stated in an Order Form, either party may opt not to renew Managed Services for a subsequent term by providing written notice to the other party at least forty-five (45) days prior to the end of the then-current annual term.

2.3 Panel Services. To the extent quantilope provides Panel Services, the nature and scope of the Panel Services, the term and the duration for which such Panel Services shall be provided, the amount and payment schedule of all fees payable by Customer for any such services, as well as any additional terms and conditions relating thereto shall be set forth in the applicable Order Form. Unless otherwise stated in the applicable Order Form, Panel Services may only be terminated for Cause. If quantilope uses Panels provided by a third party, Customer shall not be allowed to collect any PII relating to such Panel. Such restrictions shall also apply to any technical means of identification (e.g., time-stamp analysis or using URL parameters).

2.4 Customer Provided Panels. As a condition of providing its own Panel, Customer and quantilope will enter into and comply with the data processing addendum that is provided for execution through the Platform and all applicable laws. With respect to Panels provided by Customer, in no event shall quantilope or Customer sell or transfer PII to third parties, or otherwise provide unauthorized third parties with access thereto. Only an Account administrator can access and/or grant access to the Panel.

3. PROPRIETARY RIGHTS.

3.1 Customer Materials. Customer grants to quantilope and its affiliates a worldwide, non-exclusive, sublicensable, transferable, royalty-free license to use, access, reproduce, copy, modify, make derivative works of and distribute the Customer Materials for the purpose of (a) providing the Services to Customer (including by providing Panelists with access to Customer Materials); and (b) to enforce this Agreement and exercise quantilope’s rights hereunder. Without limiting any other remedies it may have, quantilope reserves the right to delete any Customer Materials from the Platform that do not comply with this Agreement. Data Sets generated through the Services provided to Customer will be owned by Customer. quantilope and its affiliates shall use the Customer Materials only as authorized pursuant to this Agreement (or any applicable Order Form).

3.2 Platform License. Subject to the terms and conditions of this Agreement, quantilope grants to Customer a limited, non-exclusive, worldwide, revocable, non-sub-licensable and non-transferable right to use the Platform solely for Customer’s own internal purposes (unless otherwise expressly set forth in the applicable Order Form). All Feedback shall be owned by quantilope and Customer hereby assigns all right, title and interest in and to such Feedback to quantilope.

3.3 General Knowledge. Customer agrees that quantilope and its affiliates are free to (a) develop any generalized knowledge, skills, experience, know-how, works, and technologies (including without limitation ideas, concepts, processes, and techniques) related to or acquired during provision of the Services under this Agreement, (b) calculate aggregated and anonymized data derived from Customer’s use of the Services, which may be based on data collected by or on behalf of Customer, and (c) aggregate anonymized Project Data of Customer with Project Data of quantilope’s or its affiliates’ other Customers in order to create and publish industry specific benchmarks or other analyses (collectively, (a) through (c), General Knowledge). Quantilope and its affiliates may use General Knowledge for any business purposes, but quantilope and its affiliates will not use or disclose General Knowledge in a manner that identifies Customer or includes any PII. As between the parties, General Knowledge will be quantilope’s, and not Customer’s, Confidential Information.

3.4 Ownership; Reservation of Rights. Customer shall own all Customer Materials and quantilope shall own all quantilope Materials. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, and all other rights are reserved.

3.5 Restrictions. Customer shall not directly or indirectly (a) use any of quantilope Materials, Confidential Information (as defined below) or the Services to create any service, software, documentation or data that is similar to, or competes, with any aspect of the Services; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services or examine its functions, or the underlying ideas, algorithms or trade secrets therein; (c) use the Documentation for any reason other than in connection with the Services; (d) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, unless expressly otherwise stated in the applicable Order Form; (e) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (f) apply for any registration of any patent, copyright or trademark or other designation, which would affect quantilope’s exclusive ownership of the quantilope Materials, or file any document with any government authority or take any action, which would adversely affect quantilope’s exclusive ownership thereof or (g) permit any third party to engage in any of the foregoing proscribed acts.

4. CONFIDENTIALITY. Each party may disclose Confidential Information to the other party in connection with this Agreement. The receiving party will (a) not use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement or any applicable Order Form and take reasonable measures to prevent unauthorized disclosure and unauthorized use of the Confidential Information and (b) limit access to Confidential Information of the disclosing party to those of its Users, affiliates, employees, consultants, contractors, and subcontractors who need to know such information for the performance of obligations or exercise of the receiving party’s rights hereunder provided such persons are subject to confidentiality obligations consistent with, but no less stringent than, those contained in this Agreement. Without limiting the foregoing, the receiving party will take at least those measures that it takes to protect its own confidential information of a similar nature, but no less than a reasonable degree of care. Neither party will make any copies of the Confidential Information of the other party except as reasonably necessary for the purpose of this Agreement or as otherwise previously approved in writing by the other party. Neither party will disclose the terms of this Agreement or any Order Form to any third party without the other party’s prior written consent, provided that both parties will have the right to disclose a copy of this Agreement to its legal, professional and financial advisors and potential investors or acquirers, subject to confidentiality obligations consistent with those herein, in connection with a bona fide due diligence inquiry for a potential financing, acquisition, or similar transactions. Upon the disclosing party’s request after the expiration or termination of this Agreement, all of the Confidential Information disclosed by the disclosing party (including any copies in the possession of the receiving party) will be and remain the property of the disclosing party and will be promptly returned to the disclosing party or destroyed by the receiving party upon the disclosing party’s request; provided, however, that the receiving party shall not be obligated to return or destroy Confidential Information to the extent it has been electronically archived by the receiving party in accordance with its automated security and/or disaster recovery procedures as in effect from time to time, provided further that any such Confidential Information so retained shall remain subject to the use and confidentiality provisions herein for so long as it is retained by the receiving party, irrespective of the term of this Agreement. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give prior notice of such disclosure (to the extent legally permitted) to the disclosing party to permit the disclosing party to request protective orders or other confidential treatment therefor. The obligations in this Section 4 will continue to apply for five (5) years following termination of this Agreement. If the receiving party is compelled by a governmental or court order to disclose Confidential Information of the disclosing party, the receiving party shall limit the disclosure to only such Confidential Information which must be disclosed to comply with the order and shall (if legally permitted) give the disclosing party prompt prior written notice of such compelled disclosure so that the disclosing party may seek to protect such Confidential Information.

5. PAYMENTS.

5.1 Fees. Customer shall pay quantilope all Fees and expenses for the Services in the amounts specified in the applicable Order Form. All amounts are quoted as net prices and must be paid in U.S. dollars. Invoicing shall be effected via e-mail and subsequently, upon Customer’s request, via physical mail.

5.2 Taxes.   Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, Taxes). Customer is responsible for paying all Taxes associated with the Services under this Agreement and all Order Forms, excluding Taxes based solely on quantilope’s net income. If quantilope is deemed to have the legal obligation to pay or collect Taxes for which Customer is responsible, the amount shall be invoiced to and paid by Customer, unless Customer provides quantilope with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.3 Payment Terms. If the payment schedule for an invoice is not specified in the applicable Order Form or this Agreement, all invoices shall be paid in full (without deduction, set-off or counterclaim) within thirty (30) days after Customer’s receipt of such invoice at quantilope's address (as provided on the Order Forms(s)) or to an account specified by quantilope. Late payments will be subject to the lower of 1.5% per month penalty, or the maximum amount permitted by applicable law, and compounded monthly on all outstanding overdue balances. Fees are non-refundable except as expressly set forth in an Order Form or this Agreement.

5.4 Disputes. Customer must contact quantilope no later than thirty (30) days after receipt of any invoice in which Customer believes there is an error or problem in order to receive an adjustment or credit. Customer agrees that failure to submit a timely dispute in good faith shall result in the waiver of Customer’s right to dispute the invoiced amount.

6. LIMITED WARRANTY AND DISCLAIMERS.

6.1 General. Each party represents and warrants that (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

6.2 Customer. Customer represents and warrants that (a) it owns the Customer Materials or otherwise has the right to grant the rights set forth in this Agreement (including the right to provide all PII to quantilope); (b) it will comply with all applicable laws, rules and regulations; (c) it will only use the Services in accordance with this Agreement; (d) the publication or use of Customer Materials as contemplated hereunder does not violate the privacy rights, publicity rights, copyright rights, contract rights, intellectual property rights, or any other rights of any person; (e) the Customer Materials and the hardware and software employed and controlled by Customer for use of the Platform will be free from errors and other Malicious Code; (f) its use of the Services and the Customer Data complies with its privacy policies, third party contracts, and all applicable laws, rules and regulations; and (g) the Customer Materials and Customer Data shall not be knowingly harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable. Upon reasonable prior notice to Customer, quantilope may delete any Customer Data or any other content that does not conform with any of Customer’s representations and warranties.

6.3 quantilope. quantilope represents and warrants to Customer that the Services will be provided in a professional and workmanlike manner. quantilope’s sole obligation and Customer’s exclusive remedy in respect of any breach of this warranty is, at quantilope’s discretion, to (a) replace, repair or re-perform the nonconforming portion of the Services to bring it into conformance, or (b) if repair or replacement is impracticable, terminate this Agreement or applicable Order Form and provide Customer with a pro-rated refund of any pre-paid Fees for use of the Services not completed by the effective date of termination.

6.4 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS-IS.” QUANTILOPE DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, QUANTILOPE HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. FURTHER, CUSTOMER ACKNOWLEDGES THAT THE PLATFORM DOES NOT, AND CANNOT, AVOID OR DETERMINE THE PRESENCE OF USER ERRORS OR CONTENT-BASED ERRORS ESTABLISHED OR INPUT BY CUSTOMER (E.G., UNSUITABLE STUDY DESIGN, LEADING QUESTIONS, AMBIGUOUS FORMULATIONS, ETC.), NOR ANY EFFECTS OF SUCH ERRORS ON THE COLLECTION OF DATA, THE ANALYSIS OF DATA, OR ANY OTHER ELEMENT OF PROJECT DATA, NOR CAN IT ALERT CUSTOMER TO INCORRECT CONCLUSIONS OR BUSINESS DECISIONS BASED ON THE PROCESSING OR ANALYSIS OF PROJECT DATA. CUSTOMER AGREES AND ACKNOWLEDGES THAT QUANTILOPE IS NOT OBLIGATED TO GENERATE ANY BACK-UP COPIES OF ANY CUSTOMER DATA AND THAT IT IS CUSTOMER’S SOLE RESPONSIBILITY TO INDEPENDENTLY GENERATE AND MAINTAIN BACK-UP COPIES OF CUSTOMER DATA.

7. INDEMNIFICATION.

7.1 Customer. Customer shall indemnify, defend and hold quantilope and its officers, directors, employees and agents harmless from any damages, losses, liabilities, expenses (including reasonable attorneys’ fees), claims, demands, suits, actions or proceedings (each, a Claim) arising from (a) the gross negligence or willful misconduct of Customer; (b) Customer Materials; (c) Customer’s breach of its representations, warranties or obligations set forth herein; (d) Users; and (e) Customer’s web site(s), advertising or marketing campaigns or methods, or any of Customer’s business practices (including, without limitation, any conduct, actions or omissions by third parties in relation to the foregoing).

7.2 quantilope. quantilope shall indemnify, defend and hold Customer harmless from any Claim brought against Customer by a third party that the Services infringe such third party’s copyright, trade secret, or valid patent issued as of the applicable Order Form Effective Date. If any Service becomes or, in quantilope's opinion, is likely to become, the subject of any injunction preventing its use as contemplated herein, quantilope may, at its option (a) obtain for Customer the right to continue using the Service or (b) replace or modify the infringing portions of the Service so that it becomes non-infringing without substantially compromising its principal functions. If (a) and (b) are not reasonably available to quantilope, then it may (c) terminate this Agreement upon written notice to Customer and refund to Customer any pre-paid Fees for the Services, pro-rated for the remainder thereof. Notwithstanding anything to the contrary set forth herein, quantilope will not be responsible for Claims, liability, issues or obligations resulting from or attributable to (i) use of the Services not strictly in accordance with this Agreement; (ii) modifications, alterations, combinations or enhancements not created by or for quantilope; (iii) any portion of the Services that implements Customer's requirements; (iv) Customer’s products, services, negligence, acts or omissions, (v) content from publicly available sources, (vi) Customer Materials or any other materials not furnished by quantilope, or (vii) Customer's continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement. This Section 7.2 states the entire liability of quantilope, and Customer's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.

7.3 Indemnification Procedures.

(a) A party seeking defense and indemnification under Section 7.1 or Section 7.2 (the “Indemnified Party”) will promptly notify the party from whom defense and indemnification is being sought (the “Indemnifying Party”) in writing, describing the circumstances, in reasonable detail, for which it seeks defense and indemnification. 

(b) Upon notice of a claim, the Indemnifying Party will immediately assume the investigation and defense of such claim, and, in connection therewith, will employ counsel of national reputation of its own choosing at its sole cost and expense. At the Indemnifying Party’s request and expense, the Indemnified Person will provide reasonable cooperation in connection with the investigation and defense of such claim; provided, however, that the Indemnified Person will not be required to disclose any confidential information which it does not have the right to disclose or to waive any privilege. The Indemnified Party may also participate in and observe (but not control) the investigation and defense of such claim, at its own cost and expense and with counsel of its choosing. 

(c) If the Indemnifying Party fails to defend a claim hereunder within a reasonable amount of time after receiving notice thereof, the Indemnified Party will have the right, but not the obligation, and without waiving and of its other rights hereunder, to undertake the defense of and to compromise or settle such claim, on behalf of and at the risk and expense of the Indemnifying Party. 

(d) The Indemnifying Party will not settle any Claim in a manner that adversely affects the rights or assets, or restrains or interferes with the business or operations of, the Indemnified Party or its Affiliates, or which involves an admission of liability of behalf of the Indemnified Person or its Affiliates, or imposes any obligation upon the Indemnified Party that the Indemnifying Party does not discharge, in each case without the Indemnified Person’s prior written consent. 

(e) An Indemnified Person’s failure to perform any obligations under this Section 7.3 will not diminish an Indemnifying Party’s obligations hereunder, except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.

8. LIMITATION OF LIABILITY. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL QUANTILOPE 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 OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT PURSUANT TO THE APPLICABLE ORDER FORM DURING THE PREVIOUS TWELVE (12) MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS DO NOT APPLY TO DAMAGES ARISING FROM (1) QUANTILOPE’S INDEMNIFICATION OBLIGATIONS, OR (2) QUANTILOPE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9. DATA SECURITY.

9.1 quantilope will maintain a level of security (including administrative, physical and technical safeguards) to protect against the unauthorized destruction, loss, disclosure or alteration of any Customer Data that meets or exceeds the requirements of: (i) CCPA, GDPR and any other applicable Laws and (ii) best practices in the technology industry for maintaining the security of PII. Upon Customer’s request, quantilope will provide Customer with full access to quantilope’s data security policies, personnel and systems and otherwise reasonably cooperate with Customer so as to enable Customer to conduct data security reviews of quantilope. 

9.2 Security Breach. quantilope will notify Customer in writing within three (3) business days of discovery of any unauthorized access, use or disclosure of any Customer Data (a “Security Breach”) and will coordinate with Customer’s security personnel in connection with the investigation.

10. TERM AND TERMINATION.

10.1 Term. This Agreement shall continue in effect until 90 days after the last to expire Order Form expires, unless or until terminated in accordance with this Agreement. Except as otherwise provided in an Order Form, the Service Term shall automatically renew for subsequent terms equivalent to the initial Service Term, unless either party provides notice of non-renewal at least forty-five (45) days prior to the end of the then-current Service Term.

10.2 Termination; Suspension. Without limiting any termination rights set forth in an Order Form, this Agreement may be terminated (a) upon written notice by either party for Cause, or (b) as otherwise provided in an Order Form. Termination of this Agreement shall terminate all outstanding Order Forms. Without limiting its rights and remedies hereunder, or at law or equity, quantilope may suspend Customer’s access to or use of the Services for any unpaid or overdue payments, for scheduled or emergency maintenance, or in the event Customer is in breach of this Agreement. quantilope’s right to terminate for non-payment is in addition and without prejudice to all other rights and remedies otherwise available to quantilope, including, without limitation, quantilope’s right to collect the outstanding amount owed to quantilope plus interest on amounts not timely paid.

10.3 Effects of Termination. Upon any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except (a) all obligations accrued prior to the effective date of termination (including without limitation, all payments) shall survive, (b) Customer shall cease using the Services (quantilope reserves the right to continue to charge Customer for continued use of Services); and (c) the provisions of Sections 3, 4, 5, 6, 7, 8, 11 and this Section 10.3 shall survive.

11. GENERAL PROVISIONS.

11.1 Entire Agreement. This Agreement (including the Order Forms and any addendums provided for execution through the Platform, the terms of which are hereby incorporated by reference) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall control for purposes of such Order Form only. This Agreement may be executed electronically or by facsimile and in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, 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. This Agreement is in English only, which language shall be controlling in all respects.

11.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in New York having jurisdiction over quantilope's offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding.

11.3 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief.

11.4 Notices. All notices hereunder will be in writing, in English and addressed to the party at the address indicated below, or at such other address that may have been specified by written notice delivered in accordance with this Section. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; upon confirmed receipt, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

If to quantilope, Inc.:

25 Broadway, Floor 10

New York, NY 10004 United States

ATTN: Legal Department, Senior Legal Counsel

With Copy to: [email protected]

If to Customer:

Address: As indicated on the applicable Order Form

City/State/Zip/Country: As indicated on the applicable Order Form

ATTN: As indicated on the applicable Order Form

With Copy to: As indicated on the applicable Order Form

11.5 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, pandemic, flood, strike, war, insurrection, riot, act of God or the public enemy, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of government authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance shall be excused or extended for the period of delay or inability to perform due to such occurrence.

11.6 CCPA. The parties acknowledge and agree that quantilope is a service provider for the purposes of the CCPA and is receiving personal information from Customer pursuant to this Agreement for a business purpose. quantilope will not sell any such personal information. quantilope will not retain, use or disclose any personal information provided by Customer pursuant to this Agreement except as necessary for the specific purpose of providing access to the Platform and performing the Services for Customer pursuant to this Agreement, or otherwise as set forth in this Agreement or as permitted by the CCPA. The terms “personal information”, “service provider”, “sale”, and “sell” are as defined in Section 1798.140 of the CCPA. quantilope certifies that it understands the restrictions of this Section 11.6.

11.7 Publicity. Customer hereby grants quantilope and its affiliates a limited, non-exclusive license to use Customer’s name and standard logo to identify Customer as a customer of quantilope, including on quantilope’s public-facing website and in marketing and promotional materials.  Additionally, Customer agrees to participate in the creation of a single (1) written case study, video testimonial, or conference presentation (collectively, the "Promotional Materials") with quantilope prior to the end of the initial Service Term set forth in the applicable Order Form and grants to quantilope full publication rights with respect to all such Promotional Materials.

11.8 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, quantilope may assign this Agreement to any successor to all or substantially all of its business or assets that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their successors, representatives and permitted assigns.

11.9 Subcontractors. quantilope may utilize the services of any subcontractor as it deems appropriate to perform its obligations under this Agreement; provided, however, that quantilope shall require its subcontractors to comply with all applicable terms and conditions of this Agreement in providing such services. quantilope shall remain liable to Customer for the performance of any such subcontractor.

11.10 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.