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1.  LICENSE TERMS

1.1  Grant of License.  On signing of the onQ order, onQ grants to Licensee, and Licensee accepts from onQ a limited, non-exclusive, non-transferable license for the License Period to include (a) access the onQ platform including but not limited to embedded conversation layer for video service, the facilitator dashboard, video content manager, and data and metric reporting (the “Service”), (b) Use the Service and the Documentation(collectively, the “License Materials”) with Licensee Content.  Licensee may during the License Period (i) make additional copies of the Documentation, solely for Licensee’s internal training and support purposes.  “Use” means that Licensee, Affiliates, and Contractors may during the License Period, access, run, and interact with the License Materials in accordance with the Documentation and the terms of this License to evaluate the (a) suitability of the License Materials for Licensee’s intended use and (b) functionality of the License Materials.  Contractors may Use the License Materials during the License Period solely for the benefit of Licensee or an Affiliate and not for the benefit of any other Licensee or client of Contractor and only for as long as Contractor is providing services to Licensee or an Affiliate during the License Period. (c) onQ reserves the right to make improvement and changes in specification and design that may also lead to discontinuing features without notice and without obligation

1.2 Ownership.  Licensee is not acquiring any right or interest in the License Materials except the license to Use the License Materials for the Term on and subject to the terms of this License.  onQ reserves all rights not expressly granted to Licensee and retains title and full ownership of the License Materials and all intellectual property rights therein, under all applicable laws of the United States and any other applicable state, federal, or foreign law. Except as expressly permitted by this License, Licensee may not: (a) sublicense, transfer, or otherwise assign its rights in the License Materials to any third-party nor allow any third-party to access or use the License Materials; (b) modify, create derivative works of, translate, reverse engineer, de-compile, or disassemble the License Materials or the software elements of the License Materials to develop any other computer program or for any other reason; or (c) copy the License Materials or the software elements of the License Materials, in whole or in part, without the prior written consent of onQ.  The original and all copies of the License Materials and the software elements of the License Materials remain the sole property of onQ, subject to all the confidentiality and other restrictions set forth in this License.  Licensee must retain all legends relating to copyright, trademarks, patents, or confidentiality on all copies of the Documentation or any print of a screen display from the License Materials.  Licensee acknowledges that onQ may analyze Licensee’s usage of the License Materials for product support, product development, and administrative purposes.

1.3 Licensee Content.  onQ will provide Licensee an account to the onQ platform to generate embed URL’s, facilitate conversation, and analyze data for Licensee to post Licensee Content for use. Licensee acknowledges its sole responsibility for the intellectual property ownership of, or right to use, all Licensee Content.  onQ claims no interest in Licensee Content.  Licensee shall be responsible for: (a) securing rights to comments posted by viewers of Licensee Content (“Viewer Commentary”), and (b) the appropriateness, legality, tone, and content of Viewer Commentary.  As between Licensee and onQ, Viewer Commentary is merged with Licensee Content and remains the property of Licensee.

1.4 Term.   The term of this License commences on the Effective Date listed in the Order and will extend for the full contract duration referenced in the order, unless extended by onQ (such stated period and any extension is hereinafter referred to as the “License Period”).

1.5    Data. (a) onQ does not own any data, information, or material that Customer or Authorized Users submit to the onQ Service (“Customer Data”). Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. onQ tracks the data, information, or material commentary that Authorized Users submit to the onQ Service (“Feedback”).  onQ processes Feedback to provide analytics to Customer and to create anonymized data for onQ to combine with similar data from other Customers, and to use in gaining future insights to improve the onQ Product (the “Anonymized Data Stream”).  Customer acknowledges and agrees that onQ owns the Anonymized Data Stream. Customer grants onQ a nonexclusive, worldwide, perpetual, irrevocable, paid-up, license use Customer Data to provide the onQ Service and to create the Anonymized Data Stream, to prepare and have prepared derivative works of the Customer Data, and to use, have used, execute, reproduce, transmit, display, perform, transfer, distribute, and sublicense Customer Data and derivative works of Customer Data, and to grant others the rights granted in this Section 1.5.

 

2. WARRANTIES AND INDEMNIFICATION

2.1    Warranties. onQ warrants to Licensee that onQ has all rights necessary to provide the License Materials to Licensee, and to its knowledge, the License Materials do not violate or infringe the intellectual property rights of any third party.  Licensee warrants to onQ that Licensee has all rights necessary to provide the Licensee Content and Viewer Commentary to onQ, and to its knowledge, the Licensee Content does not violate or infringe the intellectual property rights of any third party.

LICENSEE ACKNOWLEDGES THAT EXCEPT AS PROVIDED IN THIS SECTION 2.1, THE License MATERIALS ARE PROVIDED IN “AS-IS” CONDITION WITH NO WARRANTY. onQ EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES REGARDING THE License MATERIALS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.  onQ DOES NOT WARRANT THAT THE License MATERIALS WILL BE ERROR FREE OR THAT USE OF THE License MATERIALS WILL BE UNINTERRUPTED.

 

3. SERVICES AND SUPPORT

3.1    Integration, Custom Development Training and Consulting. All Development work, training and consulting will be outlined in a separate statement of work. onQ will always be in an independent contractor relationship to Licensee , and neither onQ nor any employee or subcontractor of onQ will be, or be deemed to be, an employee or agent of Licensee.  The Professional Services shall be performed in a workmanlike, professional manner by qualified personnel.

3.2    Support. onQ to provide up to three Licensee (3) administrators phone access to a designated support representative from 9am to 5pm EST, Monday-Friday. Licensee also have access to email and online support and other documented and video help resources.  Licensee’s administrators are expected to work on behalf of the Licensee’s end users to obtain support

3.3    Licensee shall designate an individual as the representative of Licensee (the “Licensee Representative”), whose name is set forth on the signature page to this License, and who shall be authorized to make decisions, approve plans, and grant requests on behalf of Licensee.  Licensee hereby authorizes onQ to rely on all communications from and decisions of the Licensee Representative.  Licensee will cooperate with onQ personnel so that onQ personnel can timely perform the Services.

 

4. FEES AND PAYMENT

4.1    Fees & Payment Terms. Unless onQ otherwise agrees in writing, all amounts are billed in US Dollars. Invoices are payable in full without deduction or setoff, in US Dollars on net 30-day terms or such later date as may be specified in the invoice (the “Due Date”).  Interest shall accrue from the Due Date on all undisputed amounts unpaid more than 30 days after the Due Date at the rate of one percent (1%) per month.  If Licensee believes an invoice or charge is incorrect, Licensee must contact onQ in writing within 15 days of the invoice date or charge to be eligible to receive an adjustment or credit.

4.2    Taxes. If applicable, Licensee is responsible for, and must pay, any and all federal, state, or local taxes (other than taxes based on onQ’ s income), including sales taxes imposed in connection with the license of the Service.  Licensee will reimburse onQ for any taxes that onQ is required to pay as a result of Licensee’s failure to pay such amount.

 

5. LIMITATION OF LIABILITY

IN NO EVENT WILL ONQ’s CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, EVER EXCEED THE FEES COLLECTED FROM LICENSEE PER THIS LICENSE. THE LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS LICENSE HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ONQ AND LICENSEE.  ONQ WOULD NOT HAVE PROVIDED THE LICENSE MATERIALS WITHOUT SUCH LIMITATION.

 

6. CONFIDENTIALITY

6.1 CONFIDENTIAL INFORMATION.

Each recipient of Confidential Information (the Recipient”) agrees that it will not disclose, provide, or otherwise make available any Confidential Information of the other party (the “Disclosing Party”) during the term of this License and for a period of five (5) years thereafter, and in the case of Confidential Information that constitutes a trade secret under applicable law, for as long as such Confidential Information remains a trade secret.  In addition, each Recipient agrees that it will not:

  •            (a) Use the Disclosing Party’s Confidential Information for any purpose beyond the scope of this License;
  •            (b) Copy any part of the Disclosing Party’s Confidential Information or disclose any part of the Disclosing Party’s Confidential Information to any person other than Recipient’s employees or consultants who need the Disclosing Party’s Confidential Information to perform their duties;
  •            (c) Authorize or permit any such employee or consultant to use or disclose any part of the Disclosing Party’s Confidential Information in violation of this License; or
  •            (d) Reverse engineer, de-compile, or disassemble any of the Disclosing Party’s Confidential Information nor use any of the Disclosing Party’s Confidential Information for any purpose other than the provision or use of the onQ Service.

6.2    Exclusions. Nothing in Section 6 shall be construed to restrict disclosure of Licensee Data via the onQ Service to Authorized Users.  The Recipient’s obligations under this License will not apply to any portion of the Disclosing Party’s Confidential Information that:

  •            (a) At the time of disclosure to Recipient, was in the public domain or subsequently becomes a part of the public domain through no breach of this License;
  •            (b) Recipient had in its possession at the time of disclosure by the Disclosing Party, as established by written documentation in existence at that time, and that was not acquired directly or indirectly from the Disclosing Party or with knowledge of confidentiality restrictions;
  •            (c) Recipient subsequently acquires by lawful means from a third-party who is under no obligation of confidentiality or non-use owed to Disclosing Party; or
  •            (d) Recipient subsequently independently develops without any use of or reference to the Disclosing Party’s Confidential Information.

6.3    Disclosure Pursuant to Legal Process. If Recipient is legally compelled to disclose any portion of the Disclosing Party’s Confidential Information in connection with a lawsuit or similar proceeding or to any governmental agency, to the extent legally permitted to do so, Recipient will give Disclosing Party prompt notice of that fact, including in its notice the legal basis for the required disclosure and the nature of the Disclosing Party’s Confidential Information that must be disclosed.  Recipient will cooperate fully with the Disclosing Party in obtaining a protective order or other appropriate protection relating to the disclosure and subsequent use of the Disclosing Party’s Confidential Information.  Recipient will disclose only that portion of the Disclosing Party’s Confidential Information that is legally required to be disclosed.

6.4    Enforcement. Recipient acknowledges that Disclosing Party may have no adequate remedy at law should Recipient breach its obligations under this Section 6 and agrees that Disclosing Party will be entitled to enforce its rights under this Section 6  by seeking appropriate equitable relief including a temporary restraining order and an injunction.  No delay or failure by Disclosing Party in exercising any right under this License will be construed to be a waiver of that right or of the right to assert a claim with respect to any future breach of this License.

6.5    Return of Confidential Information. Upon request by the Disclosing Party, the Recipient will return the Disclosing Party’s Confidential Information, including all copies of the Disclosing Party’s Confidential Information, and all abstracts, summaries or documents produced using the Disclosing Party’s Confidential Information, or, if so directed by the Disclosing Party in writing, the Recipient will destroy all copies of the Disclosing Party’s Confidential Information (including abstracts, summaries or documents produced using the Disclosing Party’s Confidential Information) and will certify to the Disclosing Party in writing that all copies, abstracts, summaries, and documents have been destroyed.

 

7. TERMINATION AND END OF TERM OPTION

7.1    License Termination

  •            (a) Licensee may terminate this License and all rights of Licensee hereunder if onQ breaches, in any material respect, any term of this License and fails to cure that  breach within thirty (30) days after receipt of written notice of the breach from Licensee.
  •            (b) onQ may terminate this License upon written notice to Licensee if Licensee breaches, in any material respect, any term of this License and fails to cure that breach (a) within ten (10) days after receipt of written notice of the breach from onQ, in the case of a breach of a payment obligation, a violation of the restrictions in Section 1.2 of this License, or a violation of the confidentiality provisions in Section 6 of this License; or (b) within thirty (30) days after receipt of written notice of the breach from onQ, in the case of any other breach of this License.

7.2    Effect of License Termination. 

  •            (a) Upon termination of this License, Licensee must cease all Use of the onQ Service.
  •            (b) Except as expressly provided in this License, the Service Fee is non-refundable.
  •            (c) If Licensee terminates this License (or an Order) prior to the conclusion of a multi-year term of an Order, Licensee shall pay onQ an amount equal to remaining amount of the term of this License in full, Final Payment.
  •            (d) onQ will retain Licensee Data for 30 days after termination of this License (the “Data Retention Period”).  Upon Licensee’s written request prior to the expiration of the Data Retention Period and payment of all sums due onQ, including the final payment, onQ shall provide Licensee a back-up copy of Licensee Data.  Following the Data Retention Period, onQ may delete Licensee Data from any electronic storage device and all media on which Licensee Data is present at the end of the Data Retention Period.

7.3    Survival. The provisions of Sections 1.2, 6, and 7.4 of this License will survive and continue in full force and effect notwithstanding the termination or expiration of this License.

 

8. DEFINITIONS

“Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with Licensee.
“Control” means ownership of at least 50% of the equity or beneficial interests of such entity.
“Contractor” means an independent contractor performing services for Licensee or an Affiliate.
“Licensee Content” means video files provided by Licensee for Use with the License Materials.
“onQ Content” means the video and other files listed on Exhibit A and B.

 

9. GENERAL PROVISIONS

9.1    No Assignment. Neither Party may assign or transfer its rights and obligations under this License without prior written approval of the other, except that either Party may assign this License to an Affiliate of such Party or to any successor to such Party’s business and assets upon written notice to the other Party.

9.2    No Waiver. Any failure by either Party to detect, protest, or remedy any breach of this License shall not constitute a waiver or impairment of any such term or condition, or the right of such Party at any time to avail itself of such remedies as it may have for any breach or breaches of such term or condition.  A waiver may only occur pursuant to the prior written express permission of an authorized officer of the other Party. 

9.3    Notices. All notices, communications, and deliveries under this License (other than routine support calls) must be made in writing, signed by the Party making the same, must specify the Section under this License pursuant to which it is given or being made (if applicable), and will be given or made to the address(s) specified as the “Address for Notices” on the signature page to this License.

9.4    Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this License will continue in full force and effect.

9.5    Governing Law. This License, the rights of the Parties hereunder, and any disputes between the Parties, shall be governed by, construed, and enforced in accordance with the laws of the State of Georgia, without regard to its conflicts of laws rules.  The Parties expressly exclude all application of the United Nations Convention on the International Sale of Goods to this License.

9.6    Export. Licensee acknowledges and agrees that the License Materials are subject to restrictions and controls imposed by United States law and will not export the License Materials without compliance with applicable United States and foreign laws.

9.7    Entire License. This License constitutes the final, complete, and exclusive statement of the License between onQ and Licensee in respect of the subject matter hereof and supersede and replace all previous written or oral Licenses, proposals, RFP responses, and representations. The Parties acknowledge that there are no contemporaneous side-letters, or oral Licenses, or other arrangements that contradict, alter, or otherwise serve to modify any of the terms set forth in this License.  The terms and conditions of this License will control over any contradictory or additional terms and conditions in any request for proposal, proposal, purchase order, or other written form.  Licensee acknowledges that onQ objects to all pre-printed terms and conditions on, or attached to, Licensee’s purchase orders and that such pre-printed terms and conditions shall be of no force or effect.  Nothing in this License shall supersede any prior confidentiality Agreement between onQ and Licensee.

9.8    Enforcement. Customer acknowledges that, in the event of Customer’s breach of Section 1 or Section 6 of this License, onQ may not have an adequate remedy in money or damages.  onQ will be entitled to seek an injunction against such breach from any court of competent jurisdiction.  onQ’s right to obtain injunctive relief shall not limit its right to seek further remedies.