Terms and Conditions

Updated December 8, 2014

THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A BINDING AGREEMENT BETWEEN USERIQ, INC. (“UserIQ, INC”) AND YOU OR, IF YOU REPRESENT A LEGAL ENTITY, THE LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “Client”) RELATING TO USERIQ, INC’S PROPRIETARTY CUSTOMER ENGAGEMENT PLATFORM (THE “Service”). DO NOT CLICK “ACCEPT” UNTIL YOU HAVE CAREFULLY READ THESE TERMS. BY CLICKING “ACCEPT”, YOU ARE AGREEING TO BE BOUND BY ALL OF THESE TERMS ON BEHALF OF Client, INCLUDING THE LIMITATIONS ON LIABILTY SET FORTH HEREIN.

IF YOU ARE ACCESSING THE SERVICE ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF Client DOES NOT AGREE WITH ALL OF THESE TERMS, YOU ARE NOT PERMITTED TO ACCESS THE SERVICE.

If you have any questions about these Terms, please contact UserIQ, INC

Service and Licenses

Service and Access Credentials. Client will provide reasonable cooperation, assistance, information and access to UserIQ, INC as may be necessary to initiate Client’s use of the Service. Subject to these Terms and the terms set forth in the subscription agreement executed by Client or, if Client is accessing the Service on a trial or “freemium” basis, the terms set forth on the UserIQ, INC signup page (the subscription agreement and signup page are referred to herein as the “Order”), UserIQ, INC will provide Client with access to the Service. As part of the implementation process, Client will identify an administrative user name and password that will be used to set up Client’s account. Client may use the administrative user name and password to create subaccounts for its employee users (each with unique login IDs and passwords). Client is responsible for protecting and safeguarding its administrative user name and password and all other login IDs and passwords, and Client shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Client. UserIQ, INC reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in these Terms.

License to Client. Subject to these Terms, UserIQ, INC grants Client a nonexclusive, nontransferable right and license (without right to sublicense) to (a) access and use the Service solely for Client’s internal business purposes and (b) install and use any software provided to Client by UserIQ, INC that may be necessary to transmit data to the Service (“On-Site Software”) solely in connection with Client’s authorized use of the Service. The Service is made available to Client solely as hosted by or on behalf of UserIQ, INC, and nothing in these Terms shall be construed to grant Client any right to receive any copy of any software (other than the On-Site Software). Client’s access and use of the Service shall comply with all other conditions set forth in all documentation, such as the user guide, help information, and other document regarding the Service, in each case that is provided or made available by UserIQ, INC to Client in electronic or other form (“Documentation”).

Restrictions. Client shall not directly or indirectly (a) use any of UserIQ, INC’s Confidential Information (as defined below) to create any service, software or documentation that performs substantially the same functionality as the Service, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service or Background Materials (as defined below), except and only to the extent these restrictions are expressly prohibited by applicable statutory law, (c) encumber, sublicense, transfer, distribute, rent, lease, time-share or use the Service or Background Materials in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of or otherwise modify any Background Materials, or (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns in connection with Client’s use of the Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.

Client may not use the Service in connection with any Client product, service, or website that contains any content that is illegal, harmful or offensive, including, without limitation, any content (i) that infringes the intellectual property rights of any third party or violates any third party’s rights of publicity or privacy; (ii) that violates any law, statute, ordinance or regulation; (iii) that is defamatory or trade libelous; (iv) that is obscene, pornographic or indecent; (v) that is excessively violent, incites or threatens violence or contains harassing content or hate speech; (vi) that creates a risk to a person’s safety or health or to public safety or health, or (vii) that is otherwise malicious or fraudulent.

Client is responsible for all activity in connection with the Service. Client will not use Service for any fraudulent, abusive, or otherwise illegal activity and such activity may be grounds for termination of Client’s right to access or use the Service. Use of the Service to violate the security of any computer network, crack passwords or security encryption codes, transfer a computer virus, Trojan horse, worm, time bomb or other harmful computer code, transfer, disseminate or store illegal material (including material that may be considered threatening, obscene, malicious or fraudulent), or engage in any kind of illegal activity is expressly prohibited. Client, not UserIQ, INC, remains solely responsible for all content, including messages, that client upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Service.

When using the Service for email capabilities, Client will not use illegally obtained email lists or 3rd party lists whatsoever. Client will not send SPAM or Unsolicited Bulk Email (“UBE”) as defined by Spamhaus at http://www.spamhaus.org/definition.html. Client will abide by the CAN-SPAM Act, and all applicable, state, federal, or international anti-spam laws, rules and regulations, including email laws relating to consent, opt-out methods and processing, notices, and emails sent to email addresses with wireless domains.

Feedback. From time to time, UserIQ, INC may solicit from Client or Client may make, in its sole discretion, suggestions for changes, modifications or improvements to the Service (“Feedback”). All Feedback, and all intellectual property rights therein, shall be solely owned by UserIQ, INC and shall also be UserIQ, INC’s confidential information. Client shall and hereby does make all assignments necessary to achieve such ownership.

Client Systems. Client is responsible for providing (a) all subscriptions and credentials necessary for UserIQ, INC to receive the Client Data (as defined below) and (b) in the case of Client use of the On-Site Software, all equipment, servers, devices, storage, other software, databases, network and communications equipment and ancillary services needed to send data to UserIQ, INC from its facility (collectively, “Client Systems”). Client shall ensure that Client Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation.

Limitations. UserIQ, INC will not be liable for any failures in the Service or any other problems which are related to (a) the Client Data or Client Systems or (b) any satellite, telecommunications, network or other equipment or service outside of UserIQ, INC’s facilities or control.

Support. UserIQ, INC will use commercially reasonable efforts to provide Client with updates for the Service and technical support in accordance with its regular business practices. Clients accessing the Service on a trial or freemium basis are only entitled to limited support. Client agrees that UserIQ, INC may charge in accordance with its then current policies for any support service resulting from problems, errors or inquiries related to the Client Data or Client Systems.

Pricing and Payments

Client shall pay a fee for the right to use the Service (“Service Fee”) at its then-current rates or as otherwise set forth in, and in the manner set forth in, the Order. Client agrees to reimburse UserIQ, INC for all costs (including attorneys’ fees) incurred by UserIQ, INC in collecting late payments. All payments required by these Terms are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Client agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon UserIQ, INC’s net income. All amounts payable by Client hereunder, including all Service Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Client’s payment of such amounts to UserIQ, INC.

Confidentiality

Confidential Information” means, (a) with respect to UserIQ, INC, all financial, business or technical information disclosed by or for UserIQ, INC that is of a nature that should reasonably be considered to be confidential and proprietary, and, (b) with respect to Client, non-public Client Data and any personally identifiable information relating to individual persons (“PII”) that is included within Client Data. Except for the specific rights granted by these Terms, neither party (“Recipient”) may use, copy or disclose any of the other party’s (“Discloser”) Confidential Information without Discloser’s written consent, and Recipient shall use reasonable care to safeguard Discloser’s Confidential Information, including ensuring that Recipient’s employees, contractors and agents (“Representatives”) with access to Discloser’s Confidential Information have a need to know for the purposes of these Terms and are bound by substantially similar confidentiality obligations. UserIQ, INC agrees to treat PII included in the Client Data in accordance with all applicable laws and regulations. The foregoing obligations shall not apply to any Confidential Information (other than PII) that Recipient can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to Discloser, (c) generally available to the public without breach of these Terms or (d) independently developed by it without reference to or use of any of Discloser’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its Representatives, as applicable. Promptly upon Discloser’s request at any time, Recipient shall return all of Discloser’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records, copies, summaries, analyses and materials developed from any Confidential Information. Nothing herein shall prevent Recipient from disclosing Discloser’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, Recipient shall (a) promptly notify Discloser in writing of such requirement to disclose and (b) cooperate with Discloser in protecting against or minimizing any such disclosure or obtaining a protective order.

Proprietary Rights

Definitions. As used in these Terms:

Background Materials” means all ideas, concepts, inventions, systems, platforms, software (including all On-Site Software), interfaces, tools, utilities, templates, forms, Report Formats, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are used by UserIQ, INC in providing the Service and Results (including any correction, improvement, extension or other modification to the Service made, created, conceived or developed by or for UserIQ, INC, including at Client’s request or as a result of feedback provided by Client to UserIQ, INC);

Client Data” means all information, data and other content provided by Client in connection with its authorized use of the Service, including data regarding Client’s users’ use of Client’s products or services and/or Clients’ website visitors’ clickstream and viewing patterns/behavior that is processed by the Service. Client Data does not include any user content uploaded to or created by users utilizing Client’s products or services.

Reports” means the reports, charts, graphs and other presentation in which the Results are presented to Client;

Report Formats” means the formatting, look and feel of the Reports; and

Results” means the work products resulting from the Service that are delivered to Client by UserIQ, INC through the Service, and which are based on the Client Data. For the sake of clarity, Results shall expressly exclude all Background Materials.

Client Data. Client hereby grants to UserIQ, INC a nonexclusive and royalty-free right and license to access, copy, process and use Client Data solely for the purpose of providing the Service. Client agrees that (a) the Service depends on the availability of the Client Data and (b) UserIQ, INC will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Client Data. At all times during the Term, Client shall have in place a privacy policy (i) that is readily accessible to users from its website or within its service (as applicable) (ii) that fully and accurately discloses Client uses third party service providers to provide certain services to it in connection with such website or services and (iii) that fully and accurately discloses to its users what information is collected from users, including Personally Identifiable Information (PII) and how it may be used, including uses contemplated by UserIQ, INC under these Terms. Client may collect from users and provide to UserIQ, INC only that information that is necessary to improve Clients’ products and/or services, or that will help users be more successful with Clients’ business or is otherwise necessary in order for UserIQ, INC to provide the Service. Client shall at all times comply with all applicable laws relating to data collection, privacy and security.

Further, Client agrees, unless Client gains written approval from the CEO of UserIQ INC, to not use Service to send UserIQ, INC sensitive information where unauthorized disclosure could cause material, severe, or catastrophic harm or impact to UserIQ INC, any data subjects or relying parties. Sensitive Information includes: (i) passwords and (ii) Information under strict regulatory or contractual handling requirements (e.g., PCI, HIPAA, and state and federal data security laws) including: Credit Card Information including credit card numbers, CIV numbers and magnetic stripe information, Social Security Numbers, Drivers License Numbers, Passport Numbers, Government Issued Identification Numbers, Financial Account Information, Health data, Biometric data, personally identifiable information knowingly collected from children under the age of 13 or from online services directed toward children and, Real time geolocation data which can identify an individual.

Results and Client Data. Client shall own all right, title and interest in and to the Results and Client Data. Client acknowledges and agrees that the Results will be presented to it in a Report, the Report Format of which is proprietary to UserIQ, INC. Client may make copies of the Reports only for its internal purposes in using the Results. Client agrees to grant UserIQ, INC a non-exclusive royalty-free right and license to use the Results, solely for purposes of providing the Service to Client.

General Learning; Aggregate Data. Client agrees that UserIQ, INC is free to disclose aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another customer under similar restrictions). Client further agrees that (a) UserIQ, INC shall have the right to create compilations and analyses of Client Data and Results (“Aggregate Data”) and to create reports, studies, analyses and other work product from Aggregate Data (“Analyses”) and (b) UserIQ, INC shall have exclusive ownership rights to, and the exclusive right to use such Aggregate Data and Analyses (but not the underlying data); provided, however, that UserIQ, INC shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Client Data or in a manner in which the identity of any individual Client or person can be reasonably ascertained.

Reservation of Rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and UserIQ, INC (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service, Documentation, Background Materials, Aggregate Data as relates to the ideas, concepts, processes and techniques but not the Data relating to such Aggregate Data and Analyses.

Disclaimer of Warranties

THE SERVICE IS PROVIDED WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, USERIQ, INC MAKES NO WARRANTY (I) THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (II) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICE, OR (III) THAT ANY ERRORS IN THE SERVICE CAN OR WILL BE CORRECTED. USERIQ, INC HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

Injunctions of the Service

If the Service becomes or, in UserIQ, INC’s opinion, is likely to become the subject of any injunction preventing its use on account of infringement or alleged infringement of a third party’s intellectual property rights, UserIQ, INC may, at its option (1) obtain for Client the right to continue using the Service or (2) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to UserIQ, INC, then it may terminate these Terms upon written notice to Client and refund to Client any prepaid Service fees, pro-rated for the remainder of the prepaid period.

Indemnification

Client agrees to indemnify and hold harmless UserIQ, INC against any claims, losses, liabilities, costs and expenses incurred by UserIQ, INC resulting from (a) any breach by Client of any representation, warranty or obligation under these Terms , (b) Client’s unauthorized use of the Service or other Background Materials, (c) Client’s use of the Results, including any modifications thereto or any combination of the Results with any other data or information, and (d) any actual or alleged violation by Client or the rights of any third party (including intellectual property rights or any rights of privacy or publicity).

Limitation of Liability

REGARDLESS OF THEFORM OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE),IN NO EVENT SHALL USERIQ, INC BE LIABLE 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, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT HEREUNDER DURING THE PRECEDING SIX (6) MONTH PERIOD. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

Term and Termination

Term. These Terms shall commence on the date Client (or an authorized representative on its behalf) begins using the Service and, unless sooner terminated as set forth herein, shall continue in effect for as long as Client is authorized to use the Service (as set forth in the Order).

Trial Version. UserIQ, INC may agree to grant Client access to a trial version of the Service that may be available free of charge during a trial period specified by UserIQ, INC. If granted access to a trial version, these Terms shall apply to Client’s use of the trial version and, if Client later converts to the non-trial version, these Terms will also apply to Client’s use of the non-trial version. The trial version may not have all the features or functionality of the non-trial version of the Service. UserIQ, INC may terminate Client’s access to the trial version at any time.

Termination. These Terms may be terminated early by either party if the other party breaches a provision of these Terms and fails to cure such breach within thirty (30) days after receiving notice of such breach from the non-breaching party.

Effects of Termination. Upon any termination of these Terms, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of these Terms shall survive, and (b) the provisions titled Feedback, Confidentiality, Proprietary Rights, Disclaimer of Warranties, Indemnification, Limitation of Liability, Effects of Termination and General Provisions shall survive. Unless otherwise specified in the Order, UserIQ, INC has no obligation to retain any Client Data or Results after the Term and may destroy all Client Data and Results in its possession within ninety (90) days after the end of the Term; provided, upon Client’s written request received within thirty (30) days after termination, UserIQ, INC will deliver to Client a copy of the Client Data then currently stored by UserIQ, INC (in the same format maintained by UserIQ, INC).

General Provisions

Entire Agreement. These Terms (including the Order) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of these Terms.

Modifications; Waivers. UserIQ, INC may modify these Terms at any time upon notice to Client (which may be by posting a notice through the Service); provided, however, if Client does not agree to the modified terms, Client shall notify UserIQ, INC in writing within thirty (30) days, in which case the previous terms will apply to Client’s use of the Service for any period for which Client has previously paid the Service Fee, after which Client’s right to use the Service shall immediately terminate and UserIQ, INC shall have no further responsibility or liability to Client. The failure of either party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights.

Severability. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.

Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to these Terms. In any action or proceeding to enforce or interpret these Terms, 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 and enforcing any judgment or order obtained.

Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

Notices. Any notice or communication hereunder from UserIQ, INC to Client may be sent (i) by email to the address set forth in the Order or such successor address of which UserIQ, INC is notified or (ii) by recognized express delivery courier or certified mail, prepaid and return receipt requested, addressed to Client at the address indicated in the Order or such successor address of which Client is notified. Notices or communications hereunder from Client to UserIQ, INC shall be sent via email to UserIQ via the Client’s main account contact at UserIQ.

Assignment. These Terms and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the prior consent of the other party, except to the successor to all or substantially all of a party’s business or assets, provided that such assignee agrees in writing to be bound by these Terms. These Terms shall be binding upon, and inure to the benefit of, the parties and their successors and permitted assigns.

Independent Contractors. The parties shall be independent contractors under these Terms, 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.