TERMS OF SERVICE
ACCELQ Inc.

Section 1. Definitions.

In addition to terms defined elsewhere in this Agreement, the Order Form and as otherwise referenced herein, whenever used in this Agreement the following capitalized terms shall have the following specified meanings:

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.

“Customer Data” means any of Customer’s data including the test cases, test data, test execution results etc. that Customer creates on the Hosted Services or otherwise makes available to ACCELQ with respect to the Services, as may be further described in an Order Form.

“Documentation” means ACCELQ’s user manuals or other documentation regarding the Services, accessible via Customer’s account within the Services or from the ACCELQ support team, as may be updated by ACCELQ from time to time.

“Fees” has the meaning set forth in Section 3 below.

“Hosted Services” has the meaning set forth in the Order Form.

“Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property or proprietary rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.

“Order Form” means each ordering document for Customer’s purchase of subscription(s) to the Hosted Services and any add on Services, including addenda thereto, each of which are signed or electronically delivered by Customer and accepted by ACCELQ from time to time. Each Order Form shall be subject to these Terms of Service and shall be deemed incorporated herein by reference.

“Services” means the Hosted Services and such other services that are described on and ordered by Customer under an Order Form.

“Subscription” means a subscription to the Services that Customer or an Affiliate purchases under an Order Form.

“Service Term” means the subscription period for the Subscription as specified in an Order Form, subject to any renewal as set forth therein.

“Users” means Customer’s authorized users of the Services.

2. Licenses and Restrictions.

2.1 Licenses. Subject to all terms and conditions of this Agreement, ACCELQ hereby grants Customer during the Service Term, and subject to Customer’s payment of all applicable Fees (defined in Section 3.1), a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to: (a) use the Services as described on the applicable Order Form for Customer’s internal business purposes; and (b) reproduce and use internally the Documentation to support training and use of the Services.

2.2 Users. Users must be Customer’s employees or contractors under Customer’s direction and control who use and access the Services only for Customer’s benefit and subject to all terms and conditions of this Agreement (including but not limited to the restrictions set forth in Section 2.3 below). Customer shall be responsible for all actions of all Users under this Agreement.
The Services may only be used by the number of Users for which Customer has purchased a subscription. Each User account may only be used by one individual. If account sharing has occurred, ACCELQ reserves the right to charge Customer for each individual involved from the date of original subscription, and/or terminate the access to the Hosted Service. Users must be human beings. Accounts registered by “bots” or other automated methods are not permitted.
The Hosted Service may only be used from the primary user interface provided by ACCELQ. Any access to the functionality of the Hosted Service through the backend API is restricted except for the API calls published in the Documentation.

2.3 Restrictions. Customer acknowledges that the Hosted Services constitute valuable property and trade secrets of ACCELQ and Customer agrees not to do nor allow any of the following, and that no User shall do nor allow any of the following, without the express written authorization of ACCELQ: (a) make the Hosted Services available to any third party other than Customer and Customer’s designated Users; (b) sell, resell, rent, lease, modify, translate or create derivative works of any part of the Hosted Services; (c) decompile, reverse engineer or reverse assemble any portion of the Hosted Services, or attempt to discover any source code or underlying ideas or algorithms of the ACCELQ software underlying the Hosted Services; (d) access the Hosted Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services; (e) use the Hosted Services to store or transmit material in violation of third party privacy rights or applicable privacy laws; (f) transmit unsolicited commercial or non-commercial email via the Hosted Services; (g) use the Hosted Services to store or transmit malicious code; (h) interfere with or disrupt the integrity or performance of the Hosted Services or third party data contained therein; (i) attempt to gain unauthorized access to the Hosted Services or related systems or networks; (j) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Hosted Services; (k) upload onto the Hosted Services any data or software in violation of any Intellectual Property Rights of any third party; (l) Users must directly use the Hosted Service from the user interface provided by ACCELQ. Any access to the functionality of the Hosted Service through the API is subject to prior approval by ACCELQ; or (m) access the Hosted Services for any unlawful purpose or otherwise in violation of any applicable law. ACCELQ has the right, but not the obligation, to monitor Customer’s use of the Hosted Services to determine compliance with the terms of this Agreement. ACCELQ reserves the right, without limiting any other right or remedy, to suspend Customer’s access (and therefore, all Users access) to and use of the Hosted Services if ACCELQ determines that Customer is engaging (or has engaged) in any of the prohibited activities set forth in this Section 2.3.

3. Fees and Payment.

3.1 Fees. Customer will be charged the fees as specified in the applicable Order Form(s) (“Fees”). Except as otherwise specified herein or in an Order Form, Fees are quoted and payable in United States dollars and payment obligations are non-cancelable and Fees paid are non-refundable. Customer shall pay all Fees due in accordance with the terms set forth on the applicable Order Form(s) and in this Section 3.

3.2 Fee Increases. ACCELQ reserves the right to increase Fees for its Services, provided that ACCELQ will not increase Fees during the initial Service Term stated in an Order Form (unless otherwise provided therein).

3.3 Payments. Customer will pay Fees via check, electronic transfer, or by other means specified by ACCELQ in an applicable Order Form. ACCELQ will invoice Customer in advance of the provision of applicable Services or otherwise in accordance with the relevant Order Form. If ACCELQ has not received payment of Fees by the applicable due date on an invoice, then ACCELQ may: (a) assess a late fee of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (b) condition future Services and Order Forms on payment terms shorter than those specified herein.

3.4 Taxes. Unless otherwise stated, the 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 (except those based on ACCELQ’s income) associated with the Services purchased hereunder.

4. Intellectual Property Rights

4.1 ACCELQ Ownership. As between the parties, ACCELQ owns all right, title and interest in and to the Services, including but not limited to ACCELQ software and systems generated in connection with or accessed through the Services, all documentation or other resources that may be assigned to Customer, and all modifications, improvements and derivatives of any of the foregoing (collectively, the “ACCELQ Technology”), and including without limitation any invention or discovery related to the Services that may be made as a consequence of Customer’s using the Services, and any and all Intellectual Property Rights embodied in all of the foregoing and, without limiting the foregoing, Customer hereby assigns and agrees to assign all of Customer’s rights therein to ACCELQ. Without limiting the foregoing, Customer acknowledges that the trademarks, logos and service marks (“Marks”) displayed by ACCELQ in connection with the Services are the property of ACCELQ or other third parties. Customer is not permitted to use the Marks without the prior written consent of ACCELQ or such third party which may own the Mark.

4.2 Customer Data and Results. As between Customer and ACCELQ, Customer owns all the Customer Data. Notwithstanding the foregoing, Customer shall not, nor allow any third party to, sell or offer for sell, sublicense, distribute, transfer or publicly perform or display any Customer Data provided under this Agreement as all Customer Data are for Customer’s internal use and benefit only. Customer grants to ACCELQ and its subcontractors and vendors as applicable during the Service Term the limited right to use the Customer Data for the purpose of performing the Services and as authorized in this Agreement. ACCELQ will only disclose Customer Data to its subcontractors on a need to know basis to perform the Services and such disclosure shall be subject to confidentiality and applicable privacy terms that provide no less protection to Customer Data than as provided herein. Customer is responsible for and shall obtain all licenses, rights and permissions necessary for the provision to, and use by ACCELQ and its subcontractors of Customer Data under this Agreement.

4.3 Reservation of Rights. ACCELQ reserves all rights not expressly granted in this Agreement, and no licenses are granted by ACCELQ to Customer under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.

4.4 Feedback. In consideration of Customer’s access to the Services, (i) Customer may notify ACCELQ of any problems, bugs, usability or performance or other issues Customer discovers with respect to the Services; and (ii) Customer may share with the ACCELQ suggestions, improvements, ideas for enhancements or other feedback regarding the Services (together, (i) and (ii) are “Feedback”). All such Feedback shall be owned exclusively by ACCELQ and Customer hereby assigns and agrees to assign to ACCELQ all right, title and interest in and to such Feedback and all Intellectual Property Rights therein.

4.5 Usage and Performance Metrics; Improvement of Services. For the avoidance of doubt, ACCELQ may (i) process usage and performance data with respect to the use and performance of the Services; and (ii) use and analyze the Customer Data on a de-identified/aggregate basis for its internal business purposes, including improving, testing and providing its services. ACCELQ may only disclose usage and performance-related data in a de-identified and aggregate form (e.g., not specifically identifying Customer, or any customer or prospect of Customer), for example, to describe best practices or publish general information and statistics regarding the services.

5. Confidential Information.

For purposes of this Agreement, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally, in non-tangible form or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms), and the ACCELQ Technology, all of which shall be ACCELQ Confidential Information, and Customer Data, which shall be Customer’s Confidential Information. Confidential Information shall not include information that (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (iv) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. The Receiving Party agrees to protect the confidentiality of the Confidential Information of the Disclosing Party in its possession and control in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall the Receiving Party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. The Receiving Party may disclose the Disclosing Party’s Confidential Information if compelled by law or court order to do so, provided that the Receiving Party provides the Disclosing Party, to the extent permitted under applicable law, reasonable written notice prior to any such disclosure, and assists in seeking an order protecting the information from disclosure, or limiting the scope of disclosure.

6. Security & Privacy.

6.1 Security. ACCELQ shall: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Service and the confidentiality of the Customer Data; and (ii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement and as otherwise expressly permitted in this Agreement (“Security Program”). Such Security Program will conform with the ACCELQ security protocols which are further described in ACCELQ’s most recently completed ISO 27001 audit reports or other similar independent third-party annual audit report (“Audit Report”). Upon Customer’s request, ACCELQ shall provide Customer with a copy of ACCELQ’s then-current Audit Report. In addition to the security obligations above, the following shall apply:

6.2 Data Processing Addendum. To the extent that in connection with the performance of the Services ACCELQ processes on Customer’s behalf any Personal Data subject to the European Data Protection Laws and Regulations (as defined in the DPA) contained in the Customer Data, the terms of the data processing addendum (“DPA”) available at accelq.com/DPA (password: ACCELQ) (or such other DPA executed by both parties that references this Agreement), shall apply and the parties agree to comply with such terms. The DPA may be updated by ACCELQ if required by applicable law.

7. Warranties.

7.1 ACCELQ Warranties. ACCELQ warrants that (i) it has full power and authority to enter into this Agreement and to carry out the transactions contemplated herein; and (ii) this Agreement has been duly and validly executed and delivered by ACCELQ and, once duly executed and delivered by Customer, constitutes the legal, valid and binding obligation of ACCELQ.

7.2. WARRANTY DISCLAIMER. EXCEPT AS PROVIDED IN SECTION 7.1 ABOVE, THE SERVICES ARE PROVIDED “AS IS” AND ACCELQ MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ACCELQ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, ACCELQ DOES NOT MAKE ANY WARRANTIES THAT ITS SOFTWARE OR SERVICES ARE FREE FROM ANY BUGS, ERRORS OR OMISSIONS NOR THAT IT WILL BE ABLE TO ACHIEVE ANY SPECIFIC PREDICTIVE RESULTS OR SUCCESS WITH RESPECT TO THE RESULTS. THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

7.3. Customer’s Warranties. Customer warrants that: (a) Customer has the legal power to enter into this Agreement, and doing so will not conflict with any agreements or obligations its owes to any third party; (b) Customer has the right and authority to and has obtained all necessary consents required to use and provide Customer Data for the purposes described herein and any other of Customer’s content or data used in connection with the Services; (c) use of Customer Data in connection with the Services shall not infringe the Intellectual Property Rights or privacy rights of any third party; and (d) Customer will comply with all applicable laws in connection with Customer’s actions under this Agreement.

8. Indemnity.

8.1 Indemnity. ACCELQ will defend, indemnify and hold Customer harmless from and against any and all actual or threatened claims, suits, actions or proceedings brought by a third party (“Claim”) that the Hosted Services infringe any U.S. patent or copyright, or misappropriate any trade secret, of any third party. Customer will defend, indemnify and hold ACCELQ and its directors, officers, employees, suppliers, consultants, contractors and agents harmless from and against any and all Claims arising out of or relating to Customer’s use of Hosted Service and the Customer Data stored on the Hosted Service, or Customer’s failure to comply with its obligations in Sections 10.4.

8.2 Procedures. With respect to indemnity obligations arising pursuant to this Section 8, the indemnified party (the “Indemnified Party”) shall promptly notify the indemnifying party (the “Indemnifying Party”) when it becomes aware of any Claim eligible for indemnification by the Indemnifying Party under this Section 8, provided that any delay in providing such notice shall not relieve the Indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the Indemnifying Party was prejudiced by the delay. The Indemnified Party shall reasonably cooperate with Indemnifying Party in the defense of such Claim at the Indemnifying Party’s expense. The Indemnifying Party shall have the right to control the defense and all negotiations relative to the settlement of any such Claim, including without limitation selection of counsel, and provided further that no settlement imposing any affirmative or negative obligations on the part of the Indemnified Party, including any settlement that includes admission of liability or wrongdoing by the Indemnified Party, may be made without the express written consent of the Indemnified Party.

8.3 Exclusions. ACCELQ’s indemnification obligations under this Section 8 do not apply to, and ACCELQ will not indemnify Customer from, any Claim related to: (i) ACCELQ’s use of or reliance on Customer Data or content in performing the Services or any third party data; (ii) use or combination of the Hosted Services with software, hardware, or other materials not provided by ACCELQ, where such Claim would not have arisen but for such use or combination. If Customer’s use of the Hosted Services is or is likely, in ACCELQ’s determination, to be enjoined, ACCELQ may, without limiting its indemnity obligations hereunder, procure the right for Customer to continue to use the Hosted Services or modify the Hosted Services in a manner that has materially equivalent functionality so as to avoid such injunction. If the foregoing options are not available on commercially reasonable terms and conditions, ACCELQ may cancel the Services and refund to Customer on a prorata basis all pre-paid Fees unused for the Services. This Section 8 states ACCELQ’s entire liability and Customer’s exclusive remedy for any claim of infringement.

9. LIMITATION OF LIABILITY

EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S AND ITS SUPPLIERS BE LIABLE TO CUSTOMER, ITS AFFILIATES, USERS OR ANY OTHER THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF CUSTOMER DATA OR CUSTOMER’S SOFTWARE (OR ANY DATA RELATED THERETO) OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL ACCELQ AND ITS SUPPLIERS’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO ACCELQ DURING THE TWELVE (12) MONTHS PRECEDING THE INITIAL CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. Term and Termination

10.1 Term of Agreement. The term of this Agreement commences on the Effective Date and, unless earlier terminated as provided herein, continues until the expiration or termination of the last Order Form entered into under this Agreement (“Term”). Unless otherwise specified in the applicable Order Form, each Order Form shall automatically renew for successive annual periods (each, a “Renewal Term”), unless either party gives the other at least thirty days’ prior written notice of termination effective as of the end of the Initial Order Form Service Term or then-current Renewal Term (together, the “Service Term’).

10.2 Termination. A party (the “Non-Breaching Party”) may terminate this Agreement or any individual Order Form for cause if the other party (“Breaching Party”) breaches this Agreement or an Order Form and such Breaching Party does not remedy the breach within thirty (30) days after its receipt of written notice of such breach.

10.3 Transition of Customer Data. For a period of thirty (30) days following termination or expiration of this Agreement, Customer may request a dump of the generated Java-based code corresponding to the Automation test assets stored on the Hosted Service, by contacting ACCELQ Support. If after such thirty (30)-day period following termination or expiration of this Agreement, whether or not Customer has downloaded or retrieved Customer Data from the Service, then unless prohibited by applicable laws, ACCELQ will delete or erase any and all of Customer Data on ACCELQ’s systems in connection with the Services. Except as provided in this Section, ACCELQ shall have no obligation to continue to store or permit Customer to retrieve any of Customer Data following termination of this Agreement.

10.4 Effect of Termination. Upon any expiration or termination of this Agreement: (a) Customer’s right to use the Services shall cease, and ACCELQ shall have no further obligation to make the Services available to Customer; (b) all rights and licenses granted to Customer under this Agreement will immediately cease; (c) except as provided in Section 10.3, ACCELQ will have no obligation with respect to any of Customer Data; (d) except in the event Customer terminates the Agreement for cause under Section 10.2,Customer will pay any unpaid Fees payable for the remainder of the Services Term under any applicable Order Form in effect prior to the termination date.

10.5 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 2.3 (Restrictions), 3 (Fees and Payment), 4 (Intellectual Property Rights), 5 (Confidential Information), 8 (Indemnity), 9 (Limitations of Liability), 10.3 (Transition of Customer Data), 10.4 (Effect of Termination), 10.5 (Survival) and 11 (Miscellaneous).

11. Miscellaneous.

11.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing: (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) Customer shall not permit access to or use of the Services in violation of any U.S. export embargo, prohibition or restriction. If Customer accesses the Services from outside the United States, Customer does so at Customer’s own risk and are responsible for compliance with the laws of Customer’s jurisdiction.

11.2 Choice of Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Texas, without regard to its conflict of laws provisions. The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts in Dallas County, Texas for the resolution of any disputes or conflicts arising out of or related to this Agreement.

11.3 Notices. Any notice or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be: (a) delivered by hand, deposited with an overnight courier; (b) sent by email; or (c) mailed by registered or certified mail, return receipt requested, postage prepaid, to the following:
Notices to Customer: to the address or email contact information set forth in the applicable Order Form or within Customer’s instance of the platform.
Notices to ACCELQ: ACCELQ , Inc., 14241 Dallas Parkway, Suite 520, Dallas TX 75254, Attn: Legal; Email: legal@accelq.com.

11.4 Relationship of Parties. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee, employee, representative, owner or partner of the other party, and the relationship between the parties will solely be that of independent contractors.

11.5 Assignment. This Agreement may not be transferred, assigned or delegated by Customer, including in connection with a corporate reorganization, merger, acquisition or other change in control, without the prior written consent of ACCELQ. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

11.6 Waiver, Severability. Failure of either party to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular claim involved, nor shall any course of conduct between ACCELQ and Customer or any third party be deemed to modify any provision of this Agreement. If any provision of this Agreement shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.

11.7 Injunctive Relief. The parties agree that a breach by Customer of Sections 2, 4 or 5 would result in irreparable and continuing damage to ACCELQ for which there will be no adequate remedy at law, and ACCELQ shall be entitled to injunctive relief and/or a decree for specific performance, without the necessity of proving damages or posting any bond, and such other relief as may be proper (including monetary damages if appropriate).

11.8 Entire Agreement; Amendment. These Terms of Service, together with each Order Form, is the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written. ACCELQ may provide you with any notices regarding the updates to this Agreement by email to you at the address in the Order Form or by postings on its website and/or the Service.

Except as expressly stated in these Terms of Service, no terms or conditions stated in a Customer purchase order or other Customer ordering document (other than with respect to duration, service and pricing that are consistent with the applicable executed Order Form) shall be incorporated into or form any part of this Agreement (notwithstanding any language to the contrary therein), and all such terms or conditions shall be null and void.
Order Forms governed by these Terms of Service may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, e-mail or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. A facsimile or electronic signature is deemed an original signature for all purposes under this Agreement. All headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation. All remedies set forth in this Agreement are cumulative.