SaaS End-User License Agreement

Last modified: May 24, 2019

THIS END USER LICENSE AGREEMENT, INCLUDING ANY APPLICABLE ORDER FORM WHICH BY THIS REFERENCE IS INCORPRATED HEREIN (THIS “EULA” OR THIS “AGREEMENT”), IS A BINDING AGREEMENT BETWEEN QUANTUM METRIC, INC. (“QUANTUM”) AND THE PARTY IDENTIFIED ON THE ORDER FORM AS THE LICENSEE OF THE SOFTWARE AND/OR THE PARTY MAKING USE OF THE QUANTUM SERVICE (AS DEFINED BELOW) (THE “CUSTOMER”); PROVIDED, HOWEVER, THAT IF THE PARTIES HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT TO GOVERN THE USE OF THE QUANTUM SERVICE, SUCH SEPARATE WRITTEN AGREEMENT SHALL CONTROL AND SHALL SUPERSEDE AND REPLACE THIS EULA IN ALL RESPECTS. SUBJECT TO THE FOREGOING, BY CLICKING THE “ACCEPT” BUTTON AND/OR CONTINUING TO USE THE QUANTUM SERVICE, CUSTOMER AGREES THAT THIS EULA AMENDS, RESTATES, SUPERSEDES, AND REPLACES IN ITS ENTIRETY ANY PREVIOUS END USER LICENSE AGREEMENT OR SIMILAR AGREEMENT BETWEEN CUSTOMER AND QUANTUM.

QUANTUM PROVIDES THE QUANTUM SERVICE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH SUCH TERMS AND CONDITIONS. BY CLICKING THE “ACCEPT” BUTTON, CUSTOMER (A) ACCEPTS THIS EULA AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) IF CUSTOMER IS AN INDIVIDUAL, SUCH INDIVIDUAL IS 18 YEARS OF AGE OR OLDER; AND (II) IF AN INDIVIDUAL IS UTILIZING THE QUANTUM SERVICE ON BEHALF OF A CUSTOMER THAT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, THE INDIVIDUAL HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS EULA, QUANTUM WILL NOT AND DOES NOT GRANT AND/OR LICENSE THE RIGHT TO USE THE QUANTUM SERVICE TO THE CUSTOMER AND THE CUSTOMER AND/OR ANY INDIVIDUAL ACTING ON BEHALF OF CUSTOMER MUST NOT ACCESS OR INSTALL THE QUANTUM SERVICE.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS EULA, AND THIS EULA EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED USE OF THE QUANTUM SERVICE.

  1. DEFINITIONS. As used in this EULA:

    1. “Confidential Information”

      means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information of Customer includes Customer Data. Confidential Information of Quantum includes information derived from or concerning the Quantum Service, the Quantum Technology, the Documentation and the terms of this Agreement.

    2. “Customer Data”

      means any data concerning the characteristics and activities of visitors/end users of the Domain(s) that is collected through the use of the Quantum Service.

    3. “Documentation”

      means any user manuals, handbooks, and online materials provided by Quantum to Customer that describe the features, functionality or operation of the Quantum Technology.

    4. “Domain”

      means any domain name, website, or native mobile application of Customer that may access the Quantum Service, as specified on the applicable Order Form(s).

    5. “Order Form”

      means Quantum’s standard form of ordering document, signed by both parties detailing the services to be made available by Quantum pursuant to this Agreement.

    6. “PII”

      means any information or data that includes personally identifiable information.

    7. “Quantum Code”

      means Quantum’s proprietary software code to be installed, or actually installed, by Customer on Domains, including any updates, modifications or improvements thereof provided by Quantum during the Term (as defined below) of this Agreement, which amongst other services, delivers cookies to visitors/end users of Domains for the purpose of collecting Customer Data and interactions.

    8. “Quantum Service”

      means the online service delivered by Quantum to Customer using the Quantum Technology as described in this Agreement (including all Order Forms).

    9. “Quantum Technology”

      means the Quantum Code, Quantum Service and Documentation, including all intellectual property rights therein.

    10. “Sensitive Personal Information”

      means any of the following: (a) a person’s government-issued identification number (including but not limited to social security number, driver’s license number, or state-issued identification number); and/or (b) any data related to payment processing, including but not limited to any financial account number, credit card number, debit card number, CVV2, banking account or routing number, credit report information, in each case with or without any required security code, access code, personal identification number, or password.

    11. “Session”

      means each instance in which a session cookie is sent by the Quantum Code to the browser of a visitor/end user of a Domain, which occurs when a Domain (a) contains an expired or invalid cookie from the Quantum Code, or (b) contains no session cookie from the Quantum Code. The replacement of an expired or invalid cookie from the Quantum Code or addition of a new session cookie by the Quantum Code constitutes a new session.  Session volume consumed by the Quantum Service is tracked and available to view on the Quantum Service by viewing the session card for a specific period of time.

  2. Subscription to the Quantum Service.

    Subject to the terms and conditions of this EULA, Quantum hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to: (a) install, execute and use the Quantum Code on the Domain(s) specified on the applicable Order Form(s); and (b) access and use the Quantum Service, up to the number of Sessions specified on the applicable Order Form(s). Quantum shall provide the Quantum Service to Customer, and provide Customer with training, implementation, and support services related thereto, on the terms and subject to the conditions set forth in this EULA (including all Order Forms).

  3. Customer's Use of the Quantum Service.

    1. Access and Security Guidelines.

      Customer will be assigned a unique user identification name and password (“UserID”) for access to and use of the Quantum Service through integration with Quantum’s single sign-on provider. Customer will be responsible for assigning, disabling and otherwise administering access codes generated by such single sign-on provider. Customer is solely responsible for the security of its UserID, any access codes, and any passwords related thereto (including but not limited to administrative and user passwords) and is responsible for use of the Quantum Service by any and all employees, contractors or other users that it allows to access the Quantum Service. Customer shall immediately notify Quantum of any unauthorized access to or use of its UserID or access codes, or any other breach of security or misuse of the Quantum Service by its employees, contractors and other users that Customer allows to access the Quantum Service.

    2. General Restrictions.

      Customer will not, and will not permit any of its employees, contractors, affiliates, agents, or personnel to: (a) harass or intentionally interfere with another Quantum customer’s use and enjoyment of the Quantum Service; (b) reverse engineer, disassemble or decompile any component of the Quantum Technology; (c) intentionally interfere in any manner with the operation of the Quantum Technology or the hardware and network used to operate the Quantum Service; (d) except as expressly permitted herein, sublicense any of Customer’s rights under this Agreement, or otherwise use the Quantum Technology for the benefit of a third party or to operate a service bureau; (e) modify, copy or make derivative works based on any part of the Quantum Technology; (f) access or use the Quantum Technology to build a similar or competitive product or service; (g) use any robot, spider, scraper, or other automated means to access the Quantum Service for any purpose; (h) intentionally take any action that imposes or may impose an unreasonable burden on the Quantum Service infrastructure; (i) interfere or attempt to interfere with the integrity or proper working of the Quantum Technology; (j) remove, deface, obscure, or alter Quantum’s or any third party's copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Quantum Service; and/or (k) otherwise use the Quantum Service in any manner that exceeds the scope of use permitted under Section 2.

    3. Sensitive Data.

      Notwithstanding anything in this Agreement to the contrary, Customer covenants and agrees that, with Quantum’s reasonable assistance, Customer shall configure the Quantum Code and Quantum Service to refrain from collecting or transmitting: (a) any Sensitive Personal Information (whether or not encrypted); and/or (b) any other PII, except other PII that has been secured with Quantum’s client-side public/private key encryption (such Sensitive Personal Information and unencrypted PII collectively, “Sensitive Data”). In the event Customer becomes aware that any Sensitive Data has been collected or transmitted by the Quantum Service, Customer shall contact Quantum immediately, and reasonably cooperate with Quantum to delete all such Sensitive Data.

    4. Compliance.

      Customer covenants and agrees that Customer will use the Quantum Service only in compliance with this Agreement and all applicable laws and regulations. Although Quantum has no obligation to monitor Customer’s use of the Quantum Service, Quantum may do so and may prohibit any use of the Quantum Service it believes in good faith may be in violation of the foregoing.

    5. Customer Requirements.

      Customer shall be responsible for obtaining, maintaining, and managing any equipment and ancillary services needed to connect to, access or otherwise use the Quantum Service, including, without limitation, computer networks, modems, hardware, servers, software, operating systems, networking, web servers and the like, and shall be responsible for maintaining the security thereof. Customer is responsible for correctly configuring its systems in accordance with the Documentation and any instructions provided by Quantum as may be necessary to access to the features and functions of the Quantum Service.

    6. Email.

      Customer acknowledges and agrees that if Customer elects to contact Quantum by email, such transmission might not be secure. An unaffiliated third party could view information Customer sends by these methods in transit. In the unlikely event that Quantum believes that the security of Customer information in Quantum’s possession or control may have been compromised, Quantum will promptly notify Customer of that development. Customer consents to Quantum’s use of email as a means of such notification.

    7. Implementation.

      Except to the extent otherwise set forth in an Order Form, Customer will be solely responsible for the integration of the Quantum Code into the Domains and its configuration with the Quantum Service.

    8. Domains.

      As between Customer and Quantum, Customer is solely responsible and liable for the Domains. In the event the Domain is not owned by the Customer, Customer represents and warrants that it is authorized to act on behalf of the Domain’s owner to configure the Quantum Code and Quantum Service on the applicable Domain, including but not limited to deploying Quantum Code on such Domains. On each Domain in which Customer uses the Quantum Code, Customer shall prominently display and comply with a customary privacy policy on such Domain, as well as with all applicable laws, policies, and regulations relating to the collection, use and transfer of information obtained from visitors of its webpages. Any such privacy policy must, among other customary provisions, provide visitors of its webpages with accurate disclosure of its privacy practices (including its use of cookies) with respect to its use of third-party analytics services such as the Quantum Service. Customer represents and covenants that the Domains, including all content, products and services available therein, do not and will not: (a) violate any third-party right, including copyright, trademark, patent, trade secret, moral right, privacy right or right of publicity; (b) violate any laws or regulations (including with respect to privacy); (c) contain any harassing, abusive, tortious, defamatory, false, or intentionally misleading content; or (d) contain any computer viruses, worms or other software intended to damage or alter a computer system or data.

  4. Ownership and Data.

    1. Quantum Technology.

      Quantum shall own and retain all right, title and interest in and to: (a) the Quantum Technology (including the Quantum Service); (b) the source code and object code (including the Quantum Code) and the underlying structure, ideas, know-how or algorithms relevant to the Quantum Technology; (c) any software, documentation (including the Documentation), data (other than Customer Data), applications, inventions or other technology related to or developed in connection with the Quantum Technology; (d) all improvements, enhancements or modifications to any of the foregoing (whether or not based upon any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Quantum Service), and (e) all intellectual property rights related to any of the foregoing (collectively, "Quantum IP"), and such Quantum IP shall be Quantum's sole and exclusive property. Customer shall have no proprietary interest in the Quantum IP, and will not seek, and will require its employees, agents or subcontractors not to seek, patent, copyright, trademark, registered design, or other protection for any rights in any Quantum IP. Customer acknowledges that the Quantum IP is protected by intellectual property rights owned by or licensed to Quantum. Other than as expressly set forth in this Agreement, no license or other rights in any Quantum IP are granted to the Customer.

    2. Quantum Use of Customer Data.

      Customer shall own all right, title and interest in and to the Customer Data, as well as any data or reports (except the underlying technology, template forms and designs) that is created or derived from the Customer Data and provided to Customer as part of the Quantum Service. Subject to the terms of the Agreement, Quantum is provided a limited license to Customer Data for the purpose of providing the Quantum Service, including a license to collect, process, store, and display Customer Data to the extent appropriate in providing the Quantum Service. Customer represents and warrants that it is authorized to, and has all necessary permissions to, provide the aforementioned license to Quantum. Quantum shall use and disclose Customer Data solely for the purpose of providing the Quantum Service, and shall not use, sell, rent, transfer, distribute, or otherwise disclose or make available Customer Data for the benefit of anyone other than Customer without Customer’s prior written consent.

    3. Aggregated Data.

      Notwithstanding the foregoing, Quantum may use certain Aggregated Data in order to perform analysis and statistical reports and for auditing, research and analysis to operate and improve Quantum technologies and services. “Aggregated Data” means aggregated statistical information and data that is not identifiable to any person or entity. Quantum shall not disclose to any third party any Aggregated Data that reveals or discloses Customer’s Confidential Information or the identity of the Customer. Without limiting the generality of the foregoing, Quantum shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Quantum Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Quantum will be free (during and after the Term) to use such information and data to improve and enhance the Quantum Technology and for other development, diagnostic and corrective purposes in connection with the Quantum Service and other Quantum offerings, and to disclose such data solely in aggregate or other de-identified form in connection with its business.

  5. Fees, Payment and Suspension of Services.

    Customer will pay Quantum the fees for the Quantum Service and other related services (“Fees”) in accordance with the applicable Order Form. All Fees will be billed in advance on an annual basis and are due within 30 days of receipt of invoice, unless otherwise provided in the applicable Order Form. In the event that Customer wishes to increase the number of Domains and/or Sessions beyond the maximum number of Domains and/or Sessions specified in the applicable Order Form, Customer shall be required to pay additional fees associated with the increased number of Domains and Sessions, prorated for the remainder of the then-current term. For avoidance of doubt, a Session is defined in Section 1.11 and Session volume is determined based on that definition. Such overages will be calculated as set forth on the Order Form and Quantum shall invoice Customer at the end of each month for any overages accrued in the preceding month. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Quantum’s net income. If Quantum reasonably determines that it is required to collect tax from Customer in connection with this Agreement or an Order Form issued hereunder, then Quantum may include the amount of such tax on the applicable invoice(s), and Customer shall pay such invoiced taxes in addition to the Fees. Customer shall pay to Quantum a late payment fee equal to 2% per month of any Fees or invoiced taxes not paid within 15 days of the payment due date until such amount is paid in full. Notwithstanding anything in this Agreement to the contrary, Quantum reserves the right (in addition to any other rights or remedies Quantum may have) to discontinue the Quantum Service and suspend the UserID and Customer’s access to the Quantum Service if any Fees set forth in the Order Form or due in accordance with this Section 5 are more than 15 days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date billing and contact information.

  6. Confidential Information.

    Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information of the Disclosing Party. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of its obligations hereunder or as otherwise permitted herein) or divulge to any third party any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to 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; (iv) was independently developed without use of any Confidential Information of the Disclosing Party; or (v) is required to be disclosed by law (but only to the extent such disclosure is required) after giving the Disclosing Party as much advance notice of the possibility of such disclosure as reasonably practical so that the Disclosing Party may attempt to stop such disclosure or obtain a protective order concerning such disclosure (except that no notification is required if the Receiving Party is prohibited by law from notifying the Disclosing Party). Confidential Information disclosed to the Receiving Party remains the property of the Disclosing Party. All Confidential Information and any copies shall be promptly destroyed or returned to the Disclosing Party upon the termination of this Agreement or upon the Disclosing Party's earlier request.

  7. Warranties.

    TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, QUANTUM, AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, PARTNERS, LICENSORS AND DISTRIBUTORS, DO NOT MAKE ANY REPRESENTATIONS, PROMISES, OR WARRANTIES, EXPRESS OR IMPLIED, ABOUT THE QUANTUM TECHNOLOGY. QUANTUM PROVIDES THE QUANTUM TECHNOLOGY AND ALL SERVICES PROVIDED HEREUNDER "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." CUSTOMER’S USE OF THE QUANTUM TECHNOLOGY, INCLUDING CONTENT WITHIN THE QUANTUM TECHNOLOGY, IS AT CUSTOMER’S OWN RISK AND QUANTUM DOES NOT REPRESENT, PROMISE, OR WARRANT THAT THE QUANTUM TECHNOLOGY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. CUSTOMER UNDERSTANDS AND AGREES THAT NO DATA TRANSMISSION OVER THE INTERNET OR INFORMATION STORAGE TECHNOLOGY CAN BE GUARANTEED TO BE SECURE, AND QUANTUM EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, TO THAT EFFECT. QUANTUM MAKES NO COMMITMENTS, PROMISES OR WARRANTIES ABOUT THE CONTENT WITHIN THE QUANTUM TECHNOLOGY OR CONTENT LINKED FROM THE QUANTUM TECHNOLOGY, THE SUPPORT QUANTUM PROVIDES FOR THE QUANTUM TECHNOLOGY, THE SPECIFIC FUNCTIONS OF THE QUANTUM TECHNOLOGY, THE SECURITY OF THE QUANTUM TECHNOLOGY, OR THE QUANTUM TECHNOLOGY’S RELIABILITY, QUALITY, ACCURACY, AVAILABILITY, OR ABILITY TO MEET CUSTOMER’S NEEDS, PROVIDE CERTAIN OUTPUTS, OR ACHIEVE CERTAIN RESULTS. ALL IMPLIED WARRANTIES, SUCH AS THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

  8. Indemnification.

    Customer shall hold harmless and indemnify Quantum from any suit, claim, or action arising from or related to the use of the Quantum Technology or violation of this EULA, including any liability or expense arising from claims (including claims for negligence), losses, damages, suits, judgments, litigation costs, and attorney’s fees.

  9. Limitation of Liability.

    NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL QUANTUM OR ITS OFFICERS, DIRECTORS, STOCKHOLDERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, EMPLOYEES, OR AGENTS, BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS EULA, UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE); IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL QUANTUM’S AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS EULA EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY QUANTUM FROM CUSTOMER DURING THE 12 MONTHS PRECEDING THE CLAIM. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS EULA BUT FOR SUCH LIMITATIONS.

  10. Miscellaneous.

    1. Modification of the EULA.

      Quantum may modify this EULA from time to time. Unless Quantum indicates otherwise, modifications will be effective as of the date they are posted on this page or any successor page or, as the case may be, when Customer clicks through to accept the revised EULA. Customer should review the EULA regularly.

    2. Continued Use of the Services.

      Customer may cease using the Quantum Technology at any time, but Customer’s continued use of or subscription to any Quantum Technology after the effective date of any modifications to the EULA means that Customer agrees to the EULA as modified.

    3. Waiver and Severability of Terms.

      The failure of Quantum to exercise or enforce any right or provision of this EULA will not constitute a waiver of such right or provision. If any provision (or part of a provision) of this EULA is found to be invalid, Quantum and Customer agree to give effect to the intentions as reflected in the provision, and the other provisions of this EULA remain in full force and effect.

    4. Assignment by Quantum.

      Quantum may freely assign this EULA and all of the policies and other documents incorporated or referenced in it (including all rights, licenses, and obligations under it or them), in whole or in part and without notice, for any reason, including for the purpose of internal restructuring (for example, mergers or liquidations).

    5. Publicity.

      Quantum may use Customer’s name and logo on Quantum’s websites and promotional materials (including for use at trade shows) to identify Customer as a user of the Quantum Service.

    6. Force Majeure.

      Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by an act, event, or occurrence beyond such party’s reasonable control, including, without limitation, acts of God, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, acts of terror, issues arising from bugs or other problems in the software, firmware or hardware of Quantum’s suppliers, or outages or issues with upstream providers or network carriers, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as commercially feasible.

    7. Recovery and Business Continuity.

      Quantum shall maintain and implement disaster recovery and avoidance procedures and a business continuity plan reasonably designed to prevent the Quantum Service from being materially interrupted during any disaster.

    8. Governing Law and Venue.

      This EULA and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the exclusive personal jurisdiction and venue in the state and federal courts for the county in which Quantum’s principal place of business is located for any action arising from or related to this EULA. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Quantum Technology.

    9. Export.

      Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Quantum, or any products utilizing such data, in violation of the United States export laws or regulations.

    10. Compliance with Laws.

      Customer agrees to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable.

    11. Federal Government End Use Provisions.

      The Quantum Service is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48. C.F.R. § 12.212.  Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Quantum Service as are granted to all other end users under this Agreement, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government licensees and their contractors.

    12. Termination.

      Quantum, it its sole discretion, may change, discontinue or terminate any or all aspects of a fee-based service provided to Customer without notice, including access to the Quantum Service and to support services, content and other products or services ancillary to the Quantum Service, and/or the Quantum Technology, subject to providing an appropriate refund for any prepaid and unearned fees.

  11. Accessing the Quantum Service through a Reseller.

    1. Resellers.

      Customer may purchase access to the Quantum Service from an authorized reseller of the Quantum Service (each, a “Reseller”). Each Reseller offers access to the Quantum Service upon the terms and conditions agreed upon between Customer and Reseller. All access to, and use of, the Quantum Service is governed solely by this Agreement. For avoidance of doubt, despite purchasing access to the Quantum Service from a Reseller, Customer hereby understands and agrees to be bound by this Agreement.

    2. Reseller as Administrator.

      If Customer orders the Quantum Service through a Reseller, then Customer is responsible for determining whether the Reseller has access to Customer’s account, including access as an administrator and/or the ability to configure Customer’s use of the Quantum Service and for any related rights or obligations.  As between Customer and Quantum, Customer is solely responsible for any access by Reseller on behalf of Customer to the Quantum Service, including any configuration of the Customer data to be collected through the Quantum Service.

    3. Purchase of Quantum Service through Reseller. If Customer purchased access to the Quantum Service through a Reseller:

      1. Instead of paying Quantum, Customer will pay the applicable amounts to the Reseller, as agreed between Customer and Reseller. Quantum may suspend or terminate Customer’s right to use the Quantum Service if Quantum does not receive the corresponding payment from Reseller.

      2. Customer’s order details (e.g., the Quantum Service(s) to which Customer is subscribing, the number of Domains, Session Count, Seats, the subscription term, and the time period for Session Replay History and Analytics History) will be as stated in the order placed with Quantum by Reseller on Customer’s behalf, and Reseller is responsible for the accuracy of any such order as communicated to Quantum.

      3. If Customer are entitled to a refund under this Agreement, unless otherwise specified in writing by Quantum, Quantum will refund any applicable fees to Reseller and Reseller will be solely responsible for refunding the appropriate amounts to Customer.

      4. Resellers are not authorized to modify this Agreement or make any promises or commitments on behalf of Quantum, and Quantum is not bound by any obligations to Customer other than as set forth in this Agreement.