IMPORTANT — READ CAREFULLY: Do not load or use the OneIQ data collection software or the online web portal (“Software”) until you have carefully read and agreed to the following terms and conditions. If you disagree with these terms and conditions, you cannot use or load this Software. This Terms of Service (“Agreement”) is between the legal entity licensing the Software (“Customer”) and OneIQ Corp. (“OneIQ”). You represent and warrant that you have full authority to bind the legal entity to these terms. If you do not have such authority, you may not use the Software. This Agreement becomes binding and effective upon the earliest of: (i) when Customer accesses or uses the Software; (ii) when Customer clicks an “I Accept,” “Sign up” or similar button or check box referencing this Agreement; or (iii) when Customer enter into an Order (as defined below) with OneIQ.
RIGHT OF USE
- Use Rights Grant. OneIQ grants Customer a subscription, nonexclusive and nontransferable right to use the portion of the Software as hosted by OneIQ and a portion of the Software as a downloadable component or as described in a separate written the Order (each an “Order”) and subject to all limitations and restrictions contained herein and the Order (“Use”).
- Customer may install the downloadable component of the Software on a hard drive or any other computer storage device. Customer hereby authorizes the Software to create snapshots of Customer's usage and operations data which may contain incomplete and improperly normalized information about applications, containers, services, workloads, cloud services, desktops, servers, storage arrays, network devices and other systems (“Software Obtained Information”).
- Customer may collaborate with other ONEIQ users by providing such other OneIQ users with access to the Software Obtained Information in authorized information technology environments (“IT Environments”) and authorized workspaces (“Workspaces”). It is the sole responsibility of the Customer to determine which users may or may not have access to the Software Obtained Information, what level of data visibility is necessary and disable access once access is no longer required. Software Obtained Information stored in IT Environments is the property of the legal entity represented by the Customer. Solutions and other non-Software Obtained Information contained inside Workspaces is the property of the technology vendor sponsoring those Workspaces. In the event the Customer ceases to represent the applicable legal entity, the Customer must immediately remove itself from that legal entity's IT Environment and Workspaces. In no event may Software Obtained Information, IT Environments or Workspaces be shared with technology vendors or their business partners (“Solution Providers”), unless such Solution Providers are licensed by OneIQ and have access to Workspaces.
- OneIQ shall use the Software Obtained Information only (i) as directed by the technology vendor (such as Lenovo or HPE) through which Customer received the Software and in accordance with the applicable product and privacy statements of the technology vendor or (ii) as directed by the Customer. In the event of a conflict on direction, the Customer's direction shall govern.
- Customer authorizes the Software to augment, normalize and improve the quality of Software Obtained Information by automatically exchanging anonymous information with OneIQ. In addition, the Software may record asset tags, serial numbers and product keys from applications, operating systems and the underlying hardware and use this data to retrieve additional information such as age and warranty of hardware devices from third party vendors. The Software is configured to upload Software Obtained Information to OneIQ. Subject to the restrictions contained herein, OneIQ and Solution Providers may use the Software Obtained Information to design IT infrastructure solutions, guide IT infrastructure purchasing decisions and deliver consulting and OneIQ products and services (“Services”) for the Customer. OneIQ shall keep confidential all Software Obtained Information and shall not without Customer's prior written consent disclose or use any Software Obtained Information for any purpose except as necessary for properly performing this Agreement which Customer acknowledges may include OneIQ making Software Obtained Information available to Solution Providers, subject always to any such Solution Provider being bound by a provision in similar terms to this condition in relation to the confidential nature and treatment of Software Obtained Information.
- Use. Customer shall not allow any website, that is not fully owned by Customer, to frame, syndicate, distribute, replicate, or copy any portion of Customer's web site that provides direct or indirect access to the Software.
- Additional Restrictions. In no event shall Customer disassemble, decompile, or reverse engineer the Software or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Software's operation and creating the original source code or any approximation thereof by, for example, studying the Software's behavior in response to a variety of inputs; or (iv) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof shall be deemed Confidential Information subject to the requirements of this Agreement. Customer may use OneIQ's Confidential Information solely in connection with the Software and pursuant to the terms of this Agreement.
- Data. Customer hereby authorizes the Software to collect configuration, performance, log, event and wire (network) data about Customer's applications, containers, services, workloads, desktops, servers, storage arrays, network devices as well as cloud, virtual, hyperconverged Software Obtained Information and software-defined infrastructure, and other systems . Customer authorizes the Software to augment, normalize and improve the quality of Software Obtained Information by automatically exchanging anonymous information with OneIQ. In addition, the Software may record asset tags, serial numbers and product keys from applications, operating systems and the underlying hardware and use this data to retrieve additional information such as age and warranty of hardware devices from third party vendors. The Software is configured to upload Software Obtained Information to OneIQ or its third party service, solution and vendor partners working with the Customer (collectively “Solution Providers”). OneIQ and Solution Providers may use the Software Obtained Information to provide the Customer with artificial intelligence for IT operations, including pattern recognition, anomaly detection, root cause analysis, predictive analysis and design for cloud, hyperconverged, software-defined, virtualized and traditional (desktop and server) infrastructure services.
- Fees. Customer shall pay OneIQ the fees indicated on an Order or in the Software. Unless otherwise agreed in writing, all fees shall be paid to OneIQ within fifteen (15) days of the date of invoice. The initial payment for the Software must be made on the Order Effective Date.
- Late Payments. Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
- Taxes. The service fees and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse OneIQ and hold OneIQ harmless for all sales, use, VAT, excise, property or other taxes or levies which OneIQ is required to collect or remit to applicable tax authorities. This provision does not apply to OneIQ's income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished OneIQ with a valid tax exemption certificate.
CUSTOMER REPONSIBILITIES AND RESTRICTIONS
- Customer will be solely responsible for: (i) Customer’s IT Environment, including as necessary to enable Authorized Users' access and use of the Software; (ii) account data, customer data and Customer credentials (including activities conducted with Customer credentials); (iii) providing any required notices, consents and authorizations from Customer content providers, Authorized Users and individuals whose personally identifiable information may be included in account data, Customer data or Customer credentials; (iv) entering into terms or agreements with Solution Providers, with respect to the Software Obtained Information and any other information shared, concerning data protection, international transfers, and other privacy/security measures; and (v) ensuring use of the Software is only for Customer’s IT Environment and in accordance with any other applicable terms and conditions.
- OneIQ reserves the right to investigate potential violations of this Agreement. In the event OneIQ reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity, including termination, OneIQ will have the right to suspend Authorized Users suspected of the violation from accessing the Software for so long as is reasonably necessary to address the potential violation. To the extent practical, OneIQ will notify Customer of any such suspension in advance (each, a “Suspension Notice”) and work with Customer in good faith to resolve the potential violation. For clarification, OneIQ reserves the right, but does not assume any obligation to Customer (except with respect to the Suspension Notice), to take any of the actions described herein.
MAINTENANCE AND SUPPORT SERVICES
- Maintenance. OneIQ shall use commercially reasonable efforts to provide corrections to reported problems that (i) prevent the Software from conforming in material respects to its specifications, and (ii) are replicated and diagnosed by OneIQ as defects in the Software (“Maintenance and Support Services”). OneIQ shall use commercially reasonable efforts to begin working on a resolution to Customer's written notice of reported problems within fourteen (14) days, provided corrections shall be prioritized in OneIQ reasonable discretion. A response is not a guaranty of a solution to the reported problem; however, OneIQ will keep Customer apprised of the resolution closure. Additional features and functions are not included as part of the maintenance and support services.
- Service Availability. OneIQ's goal is to provide Software availability twenty-four hours per day, seven (7) days per week (referred to as “24x7 Availability”) EXCEPT during times of scheduled updates. However, the parties recognize that 24x7 Availability is only a GOAL, and OneIQ cannot represent or guarantee that such goal can be achieved. These response time goals apply only to public production servers (i.e. web servers, application servers, and database servers). OneIQ shall use reasonable efforts to achieve 99% Software availability in North America. The Software availability goal exclude any time Customer requests the site be taken down for scheduled updates. OneIQ does not and cannot control the flow of data to or from OneIQ's network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer's connections to the Internet (or portions thereof). Although OneIQ will use reasonable efforts to take actions it deems appropriate to remedy and avoid such events, OneIQ cannot guarantee that such events will not occur. Accordingly, OneIQ disclaims any and all liability resulting from or related to such events.
- Exclusions. OneIQ shall not be obligated to provide Maintenance and Support Services for any software other than the generally available Software delivered to Customer pursuant to this Agreement (collectively the “Unsupported Code”). Any OneIQ support services related to Unsupported Code shall be subject to execution of a mutually agreed upon assignment order issued under a professional services agreement.
- Third Parties. OneIQ shall have the right to use third parties, including employees of OneIQ's affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this Section, all references to OneIQ or its employees shall be deemed to include such Subcontractors.
- Reservation of Rights. As between the parties Customer shall own all right, title and interest in and to the Customer's data input by Customer to the Software and Software Obtained Information in IT Environments,. Customer irrevocably acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the Software or OneIQ materials provided to Customer. OneIQ shall own all right, title, and interest in such Software and OneIQ materials, subject to any limitations associated with intellectual property rights of third parties. OneIQ reserves all rights not specifically granted herein.
- Aggregate Data. As between the parties, OneIQ owns and shall continue to own all right, title and interest in and to all aggregate and statistical information or analyses created and developed by OneIQ from performance and usage data generated through Customer's use of the Software (collectively, “Aggregate Data”). Aggregate Data is de-identified so that Customer cannot be identified as the source within the Aggregate Data.
- Trademarks. OneIQ is registered trademark in the U.S. Patent and Trademark Office. All other product names, logos, brands, trademarks and registered trademarks are property of their respective owners.
- Definition. “Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information.
- Confidentiality of Software. All Confidential Information in tangible form shall be marked as “Confidential” or the like or, if intangible (e.g. orally disclosed), shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed OneIQ Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by OneIQ; (ii) the oral and visual information relating to the Software; and the terms and conditions of this Agreement.
- Exceptions. Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party's Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
- Ownership of Confidential Information. Nothing in this Agreement shall be construed to convey any title or ownership rights to the Software or other Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the OneIQ Confidential Information. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.
- Non-Disclosure. Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party. Each party agrees to restrict access to the other party's Confidential Information only to those employees or Subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
- Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.
- Suggestions/Improvements to Software. Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other OneIQ materials provided to Customer shall be owned by OneIQ, and Customer hereby agrees to assign any such rights to OneIQ. Nothing in this Agreement shall preclude OneIQ from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by OneIQ in the performance of services hereunder.
- Publicity of Software Outputs. Software outputs, including but not limited to Software Obtained Information, Reports and Solutions, may not be published without express written permission from OneIQ.
- Authorized Representative. Customer and OneIQ warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
- Disclaimer of Warranties. Customer acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Software or maintenance, or other services provided hereunder. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS” AND ONEIQ MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
- No Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of OneIQ.
LIMITATION OF LIABILITY
- Liability Cap. IN NO EVENT SHALL ONEIQ BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR ONEIQ SOFTWARE AND SERVICES, WHICH GAVE RISE TO SUCH DAMAGES IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
- Disclaimer of Damages. IN NO EVENT SHALL ONEIQ BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
TERM AND TERMINATION
- Termination by OneIQ. This Agreement and any right of use created hereunder may be terminated by OneIQ (i) if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
- Termination by Customer. This Agreement may be terminated by Customer on thirty (30) days written notice to OneIQ if OneIQ fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from OneIQ's receipt of Customer's notice or a longer period if OneIQ is working diligently towards a cure.
- Termination. Upon termination of this Agreement, Customer shall no longer access the Software and Customer shall not circumvent any security mechanisms contained therein.
- Other Remedies. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer's obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
- Ancillary Agreements. Customer agrees that no employees of OneIQ shall be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.
- Compliance With Laws. Customer agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement. The parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded.
- Assignment. Customer may not assign this Agreement or otherwise transfer any right of use hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of OneIQ. Any assignment or transfer in violation of this Section shall be null and void.
- Survival. The provisions set forth in Sections 2, 6, 7.2, 8, 9.3, 9.4, and 11 of this Agreement shall survive termination or expiration of this Agreement.
- Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to OneIQ shall be sent to the attention of the CEO. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
- Force Majeure. OneIQ shall not be liable to Customer for any delay or failure of OneIQ to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of OneIQ. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
- Restricted Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Software, when delivered to the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such delivery.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto.
- Order of Precedence. In the event of a conflict between the terms and conditions of this Agreement, an Order, or an End User License Agreement, the terms and conditions of the Order, Agreement, or End User License Agreement shall prevail, in that order.
- Modifications. The parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
- Nonsolicitation. During the term of this Agreement and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of OneIQ without the prior written consent of OneIQ. Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of OneIQ for a period of one (1) year from such former employee's or Subcontractor's last date of service with OneIQ. Violation of this provision shall entitle OneIQ to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person's gross annual compensation.
- Publicity. Customer agrees to cooperate with OneIQ (i) in preparation of at least one (1) press release, where the aforementioned materials can be used in/on OneIQ's Web site, marketing materials, trade shows, public advertisements, and other associated marketing uses (“OneIQ Marketing Materials”); and (ii) in preparation of an OneIQ-sponsored testimonial advertisement to be run in newspapers, magazines, and other publications and for use in OneIQ Marketing Materials. The parties further agree that OneIQ may include Customer's logo on publicly displayed customer lists (including OneIQ's Internet Web site and public advertisements). There shall be a “Powered by OneIQ” logo, to be provided by OneIQ, in the bottom portion of any of Customer's Web pages that utilize the Software, which logo shall link directly to the then-current OneIQ Web site home page.
- No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
- Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
- Choice of Law. This Agreement shall be governed and interpreted by the laws of the state of Ontario, Canada without regard to the conflicts of law provisions of any province or jurisdiction. Any action arising out of, or related to, this agreement shall be brought in the courts located in Ontario, Canada and each party hereby submits to the exclusive jurisdiction of such courts.