SaaS End User License Agreement

Last modified: January 18, 2015

PLEASE READ THIS END USER LICENSE AGREEMENT (THIS “EULA”), WHICH CONSTITUTES A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN THE COMPANY OF WHICH YOU ARE A DULY AUTHORIZED EMPLOYEE OR AGENT AS THE PARTY ACCESSING THE SOFTWARE (“SUBSCRIBER”) AND QUANTUM METRIC, LLC. (“QUANTUM METRIC”).

  1. Parties

    These terms represent the agreement (“Agreement”) that governs the use of Quantum Metric Software from Quantum Metric, LLC (“Quantum Metric”) by the subscriber entity identified below.

  2. Confidentiality

    1. Confidential Information

      For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; and, (c) should reasonably be recognized as confidential information of the disclosing party due the nature of the information. The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without violating use or reference of the disclosing party’s Confidential Information; (c) obtained from a source other than the disclosing party without an obligation of confidentiality; (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by the receiving party) or (e) disclosed under operation of law, except that recipient will disclose only such information as is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed and will provide the disclosing party notice of such possible disclosure prior to disclosure in order to give the disclosing party an opportunity to contest such disclosure. For purposes of this Agreement Subscriber Data shall be deemed to be Confidential Information.

    2. Obligation of Confidentiality

      The parties agree to hold all Confidential Information in strict confidence and not to disclose such Confidential Information to third parties other than Affiliates, employees, agents, consultants or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and Subcontractors of their obligations to keep all Confidential Information confidential.

    3. Violations

      Each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

    4. Remedies for Breach

      Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings.

    5. Return of Confidential Information

      Upon termination of this Agreement, in whole or in part, each party shall, within thirty (30) calendar days from the date of termination, return or destroy all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession.

    6. Survival

      The provisions of this Section 2 shall survive termination of the Agreement for a period of five years except that (i) any trade secrets (including, but not limited to source codes, technology, algorithms, and protocols) shall be deemed and treated as Confidential Information for as long as such information continues to be protectable as trade secret information under applicable law; and (ii) Subscriber Data shall continue be treated as Confidential Information indefinitely.

  3. Subscriber Data

    1. Subscriber Data

      "Subscriber Data" means the data concerning the characteristics and activities of visitors on Supported Webpages that is collected by Subscriber and transferred to Quantum Metric for the purpose of providing the Services.

    2. Quantum Metric Use of Subscriber Data

      Subject to the terms of the Agreement, Quantum Metric is provided a limited license to Subscriber Data for the purpose of providing the Services, including a license to collect, process, store, and display Subscriber Data only to the extent necessary in providing the Services. Quantum Metric shall: (a) keep and maintain Subscriber Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement; (b) use and disclose Subscriber Data solely for the purpose of providing the Services; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Subscriber Data for the benefit of anyone other than Subscriber without Subscriber’s prior written consent.

    3. Aggregated Data

      Notwithstanding the foregoing, Quantum Metric may use certain Aggregated Data in order to perform web surfing analysis and statistical reports and for auditing, research and analysis to operate and improve Quantum Metric technologies and services. "Aggregated Data means aggregated statistical information and data that is not identifiable to any person or entity. In no event whatsoever will Quantum Metric disclose to any third party any Aggregated Data that reveals, or discloses Confidential Information, or the identity of the Subscriber.

    4. Ownership

      Subscriber Data is and shall remain the sole and exclusive property of Subscriber and all right, title, and interest in the same is reserved by Subscriber.

  4. Privacy and Security

    1. Security

      Both for Quantum Metric user interface access and javascript library, Quantum Metric uses TLS 1.2 with AES 128 encryption for the session, terminated at the server to ensure end-to-end security over the wire. Quantum Metric may also restrict user interface access to Subscriber corporate networks for additional security, as requested by Subscriber.

      1. Unauthorized use

        Subscriber shall notify Quantum Metric immediately if it becomes aware of any unauthorized use of any Subscriber password or Subscriber’s account or any other breach of security or misuse of the Services by its employees, contractors and other users that Subscriber allows to access the Services. Subscriber is responsible for use of the Services by any and all employees, contractors or other users that it allows to access the Services.

      2. Unauthorized access

        We take reasonable steps to protect the data we collect from unauthorized access, disclosure, alteration, or destruction. We do this by implementing industry standard security procedures for storing and accessing information. However, you should be aware that we cannot ensure that all of your private communications and other personally identifiable information will never be disclosed in ways not otherwise described. By way of example (without limiting the foregoing), we may be forced to disclose information to the government or third parties under certain circumstances, third parties may unlawfully intercept or access transmissions or private communications, or users may abuse or misuse your information that they collect from our site.

      3. Email

        If you contact us by e-mail, you should be aware that your transmission might not be secure. An unaffiliated third party could view information you send by these methods in transit. In the unlikely event that we believe that the security of your information in our possession or control may have been compromised, we will seek to notify you of that development. If notification is appropriate, we shall endeavor to do so as promptly as possible under the circumstances. You consent to our use of e-mail as a means of such notification. If you would prefer us to use another method to notify you in this situation, please contact us with the alternative contact information you would like us to use.

    2. Undertaking by Quantum Metric

      Without limiting Quantum Metric’s obligation of confidentiality as further described herein, Quantum Metric shall maintain a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) protect against any anticipated threats or hazards to the security or integrity of the Subscriber Data; (b) protect against unauthorized disclosure, access to, or use of the Subscriber Data; (c) ensure the proper disposal of Subscriber Data; and, (d) ensure that all employees, agents, and Subcontractors, if any, comply with all of the foregoing. Quantum Metric agrees to use Subscriber Data only as instructed by Subscriber pursuant to this Agreement.

    3. SaaS Platform

      Quantum Metric’s SaaS platform (servers, infrastructure and storage) for the Services is hosted in Google Compute Engine, one of the largest and most advanced computer networks. Google Compute’s data center provider is and will remain SOC2, SSAE 16 & ISAE 3402 compliant, meaning it has been fully independently audited to verify the validity and functionality of its control activities and processes. Data is always encrypted on disk and in transit, and will remain encrypted backed up nightly, stored redundantly and will be restored rapidly in case of failure.

    4. Data Access

      Access to Quantum Metric’s SaaS platform infrastructure and data for the Services is and will remain secured by multiple authentication challenges including RSA and DSA key pairs, passwords, and network access control lists. Infrastructure and data access is and will remain restricted to Quantum Metric employees and contractors, all of whom are under strict confidentiality agreements. System and Network activity for the Services are and will remain actively monitored by a team of engineers 24/7. Failed authentication attempts are audited and engineers will be paged immediately so that any possible intrusion or threat can be investigated promptly. Standard firewall policies are and will remain deployed to block all access except to ports required for Quantum Metric’s SaaS platform and Agent communication.

    5. Data Communication

      All traffic, including Quantum Metric’s javascript library and end user browsers, will communicate only through HTTPS connections to cloud server(s), which have been allocated to one or more subscribing user accounts. Quantum Metric’s also offers dedicated cloud server(s) for subscribing users who require their data to be completely isolated in memory. Without regard to processing, each subscribing user account’s data is stored in a separate database with separate access control.

    6. Privacy Policy; Laws

      Subscriber shall ensure that it has and abides by an appropriate privacy policy and will comply 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 provide visitors of the Supported Website(s) 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 Software Services.

  5. Representations and Warranties

    1. Proprietary Rights Indemnification

      Quantum Metric agrees to indemnify, defend, and hold harmless Subscriber from and against any and all damages, losses, expenses, and fines (including reasonable attorneys’ fees, costs, and expenses) ("Damages") awarded against Subscriber by a court of competent jurisdiction or otherwise agreed in a settlement in connection with a claim by a third party ("Claim") that the Software Service infringes any United States or foreign patent, copyright, trade secret, trademark, or other proprietary right.

    2. Subscriber Indemnification

      Subscriber agrees to indemnify Quantum Metric, at Subscriber’s expense, against any and all third-party claims, actions, proceedings, and suits brought against Quantum Metric or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable and documented outside attorneys' fees and court costs) incurred by Quantum Metric, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) Subscriber’s use of the Product and/or the Services contrary to the terms of this Agreement and/or in violation of any applicable laws and/or regulations; and/or (b) Subscriber's negligence or willful misconduct.

    3. Indemnification Procedures

      If a Party is entitled to indemnification pursuant to this Agreement (the "Indemnified Party"), the Indemnified Party shall give the other Party (the Indemnifying Party) prompt written notice and provide the Indemnifying Party, at its option, control to defend against the claim. If the Indemnifying Party elects to defend the action the Indemnifying Party will be obligated to defend the claim, at its own expense, and by counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party shall have the right to participate fully, at its own expense, in the defense of such claim. Any compromise or settlement of a claim shall require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.

    4. Limitation of Liability

      NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTIAL AND / OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS OR REVENUE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT THE LIABILITY OF QUANTUM METRIC HEREUNDER FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING SHALL NOT EXCEED THE FEES PAID OR PAYABLE FOR THE 12 MONTH PERIOD PRIOR TO THE OCCURANCE OF THE EVENT(S) GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT.

  6. Indemnification; Limitation of Liability

    1. Mutual

      Each of Subscriber and Quantum Metric represent and warrant that (i) it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation; (ii) it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid , and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles; and, (iv) it shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement.

    2. By Quantum Metric

      Quantum Metric represents and warrants that (i) the Services and any other work performed by Quantum Metric hereunder shall not infringe upon any copyright, patent, trade secret, or other proprietary right; (ii) it has the expertise to perform the Services in a competent, workmanlike, and professional manner; and (iii) it will not knowingly introduce any computer viruses, malware, or similar malicious software ("Viruses") into Subscriber’s computing and network environment and shall take reasonable steps to ensure such Viruses are not introduced through the Services

    3. Disclaimer of Warranties

      THE SERVICES, CODES AND ALL REPORTS ARE PROVIDED BY QUANTUM METRIC "AS IS" AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY QUANTUM METRIC, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, CODES OR REPORTS INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. QUANTUM METRIC DOES NOT WARRANT THAT THE SERVICES, CODES OR REPORTS WILL MEET SUBSCRIBER NEEDS, BE ERROR FREE, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORM THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES.

  7. Proprietary Rights; Restrictions

    1. Quantum Metric Property

      Quantum Metric and its licensors retain ownership of all patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights relating to, embodied by, or incorporated in, the Software Services and Codes ("Quantum Metric Software") including any updates, enhancements, derivatives, modifications or improvements made to the Quantum Metric Property. All rights in and to the Quantum Metric Property not expressly granted to Subscriber in this Agreement are hereby expressly reserved and retained by Quantum Metric and its licensors without restriction. Quantum Metric grants Subscriber, during the Term of the Agreement, a limited, revocable, non-exclusive, royalty free, non-sub-licensable and non-transferable license to implement the Codes on the Supported Website, solely for the purposes specified in the Documentation.

    2. Restrictions

      Subscriber shall not: (i) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, transfer or distribute any portion of the Quantum Metric Software to any third party; (ii) reverse engineer, decompile or disassemble the Quantum Metric Software or any components thereof; (iii) modify, translate, patch, alter, change or create any derivative works of the Quantum Metric Software, or any part thereof; (iv) use any robot, spider, scraper, or other automated means to access the Software Services for any purpose; (v) take any action that imposes or may impose an unreasonable or disproportionately large load on the Software Services infrastructure; (vi) interfere or attempt to interfere with the integrity or proper working of the Software Services, or any related activities; and/or (vii) remove, deface, obscure, or alter Quantum Metric's or any third party's copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Services.

    3. Subscriber Property

      All Subscriber Confidential Information, Subscriber Data and the Reports (except the underlying technology, template forms and designs) created, and/or compiled in performance of the Services is Subscriber’s sole and exclusive property.

  8. General

    1. Relationship between Subscriber and Quantum Metric

      The relationship of the Quantum Metric and Subscriber shall be that of independent contractors. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on behalf of the other party or to represent itself as the other’s agent or in any way that might result in confusion as to the fact that the parties are separate and distinct entities.

    2. Governing Law

      This Agreement shall be governed and construed in accordance with the laws of the State of Colorado, USA (without giving effect to conflict of laws rules). The Parties hereto hereby irrevocably submit to the jurisdiction of the courts in the County of El Paso, Colorado, USA.

    3. Compliance with Laws

      Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable.

    4. Cooperation

      Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder.

    5. Force Majeure; Excused Performance

      Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance.

    6. Publicity

      Quantum may use Customer’s name and logo on Quantum’s websites to identify Customer as a user of the Quantum Services.

    7. No Waiver

      The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

    8. Notices

      All notices and other communications required or permitted hereunder to be given to a Party to this Agreement shall be in writing and shall be faxed or mailed by registered or certified mail, email, postage prepaid, or otherwise delivered by hand or by messenger, addressed to such Party's address as set forth in the preamble to this Agreement, or at such other address as the Party shall have furnished to each other Party in writing, at least 10 business days in advance, in accordance with this provision. Any notice sent in accordance with this Section shall be deemed delivered to the addressee Party (a) if mailed, 7 business days after mailing, (b) if sent by messenger, email or via facsimile, on the first business day following the day of such sending or transmission (with electronic confirmation of transmission) (provided, however, that any notice of change of address shall only be valid upon receipt).

    9. Assignment of Agreement

      Neither Party may assign any of its rights and/or obligations under this Agreement without first obtaining the non-assigning Party's written consent, provided however, that either Party may freely assign this Agreement and all rights and data or information related thereto to an affiliated company or in connection with a merger, a sale of such Party or all (or substantially all) of such Party's assets, or similar reorganization, provided that such assignment does not prejudice the rights of the non-assigning Party hereunder. Any attempted assignment in violation of this restriction shall be void. Without derogating of the above, any Quantum Metric's Affiliate may exercise the same rights and obligations granted to (or undertaken by) Quantum Metric in this Agreement.

    10. Counterparts; Facsimile

      This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that an email and PDF documents with signatures may substitute for and have the same legal effect as the original signature.

    11. Entire Agreement

      This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Subscriber and Quantum Metric as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties. This Agreement shall be construed without regard to the party that drafted it. Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.

    12. Cumulative Remedies

      All rights and remedies of Subscriber herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against Quantum Metric for the enforcement of this Agreement, and temporary and permanent injunctive relief

    13. Restrictions on Use

      Subscriber may not: a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any commercial use of, outsource, use on a timeshare or service bureau, or otherwise generate income from the Services; b) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Services, or attempt to discover or permit the discovery of any source code or other operational mechanisms of the Services; c) modify, adapt, translate or create derivative works, nor allow any of those actions to occur, based on all or any part of the Services; d) modify any proprietary rights notices which appear in the Services or components thereof; or e) use any Services in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the scope of the rights granted under this Agreement.

    14. Termination

      Upon expiration or termination of the Term for any reason, (i) Subscriber shall cease any further use of the Software and destroy any copies of the Software within Subscriber’s possession or control and (ii) each Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control. In addition to any other rights set forth herein, unless Subscriber has purchased a subscription to the Software, Quantum Metric may in its sole discretion immediately restrict, suspend, revoke, or terminate Subscriber’s access to the Software, in whole or in part and without notice. Any terms in the Agreement which by their nature extend beyond termination or expiration of the Agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.

Schedule 1 - Definitions

  • (a) "Affiliate" means any entity that, directly or indirectly, controls, is controlled by, or is under common control with such entity, including any entity in which such entity holds, directly or indirectly, at least a fifty percent (50%) of the voting power of the shares or other securities for election of directors (or other managing authority) of the controlled or commonly controlled entity.
  • (b) "Quantum Metric" means Quantum Metric Ltd. located at 16055 Old Forest Pt, #302 Monument, CO USA
  • (c) “Data History” means (i) the amount of time Subscriber Data received by Quantum Metric will be saved for the purpose of analysis by the Software Services; and (ii) the amount of time each individual Recording will be available to Subscriber for viewing.
  • (d) "Recording" means the recreation of a user’s interaction with a Supported Webpage, such recreation viewable through video playback.
  • (e) “Seat” means the users enabled to use the Services.
  • (f) “Services” means the Software Services.
  • (g) “Software Services” means the analytics and session replay software as a service solutions specified in an Order Form as well as updates or upgrades thereto.
  • (h) “Subscriber” means the company or entity using the Services.
  • (i) "Subscription Terms" means the subscription terms described in the Order Form including, without limitation, the fees, agreement term, and Services to be provided.
  • (j) “Supported Website” means the Subscriber website(s) with Supported Webpage. Subscriber may add to any site without the express permission by Quantum Metric as long as all other terms are met.
  • (k) “Supported Webpage” means such webpages that Client has identified, through implementation of the javascript code to be implemented by Subscriber on such webpages of the Supported Website that it wishes the Software Services to analyze, as webpages it wishes the Software Services to analyze.