SOFTWARE AS A SERVICE AND CONFIDENTIALITY AGREEMENT

 

THIS AGREEMENT (the “Agreement” or “Confidentiality Agreement”) is entered into and made effective between QCFS LLC, a Delaware limited liability company (“QCFS” or “Provider”), and {firstName} {lastName} ("Subscriber or Service Provider"). For purposes of this agreement QCFS and Subscriber may be referred to individually as “Party” and jointly as “Parties.”

WHEREAS, Subscriber desires to utilize software provided by QCFS as a sales and marketing tool.

WHEREAS, the Parties desire to keep their discussions regarding the Business Relationship and the nature and scope thereof confidential. Such discussions may involve the disclosure of confidential and proprietary information between the Parties; and;

WHEREAS, the Parties desire to reach an understanding with respect to the disclosure of such information and with respect to the confidentiality of the discussions and use of the software and information in general. Subscriber requires third party hosted “software as a service” (the “Services,” as further described herein) with respect to certain of its information technology needs;

WHEREAS, Subscriber requested use of software provided by Provider.

WHEREAS, based on Provider’s superior knowledge, experience relating to such Services, Subscriber has selected to use Provider’s software as a service under the terms of this agreement.

 

1. Definitions

1.1 Confidential Information. The term “Confidential Information” means all materials and information of the disclosing Party disclosed to, revealed to, or placed in the possession of, directly or indirectly, the receiving Party in connection with the Business Relationship, regardless of the form in which it appears, or under which it is communicated, all copies or recordings thereof (whether or not made in accordance with this Confidentiality Agreement) and the content of such information.

1.2 Quote Comparison Tool. The term “Quote Comparison Tool” refers to any computer program that compares two (2) or more countertop prices.

1.3 Business Relationship. The term Business relationship means the relationship between Provider and Subscriber entered into for the purpose of providing and utilizing sales and marketing software as formalized by the terms of this agreement.

1.4 Visualizer. The term “Visualizer” refers to any software program that allows customers or consumers to design visually online or through any computer.

1.5 Free Software. The term “Free version” refers to the version of the SASS based service provided by QCFS. The term “Free version” also refers to 1 Free License of the kitchen visualizer which is revocable at any time by QCFS.

 

2. Proprietary Rights.

2.1 Pre-Existing Materials. Subscriber acknowledges that, in the course of performing the Services, Provider may use software and related processes, instructions, methods, and techniques that have been previously developed by Provider (collectively, the “Pre-existing Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of Provider.

3. Confidentiality

3.1 The Parties will take all reasonable precautions necessary to safeguard the Confidential Information received from the other Party from disclosure to anyone other than the undersigned’s appropriate representatives and agents, including counsel and financial advisors, who have a need to have access to the Confidential Information in connection with the Business Relationship (provided that such representatives and agents are informed of the confidential nature of such information and agree to treat such information confidentially).

3.2 The Parties, their representatives, advisors and agents, will not use, or permit the use or disclosure of, the Confidential Information for any purpose other than to assist the Parties in their Business Relationship and for no purpose other than in connection with the Business Relationship.

3.3 Upon request by the disclosing Party, the receiving Party will promptly return or destroy all samples and all documents of any character including but not limited to drawings, designs, plans, specifications, data, manuals, models, computer media and other materials embodying or containing Confidential Information of the disclosing Party, including all copies and summaries thereof, provided that the deletion of computer files containing Confidential Information shall be sufficient without the necessity of physical destruction of the media. If such Confidential Information has been destroyed, the receiving Party’s written certification of such destruction to the disclosing Party shall be a sufficient response to the return request. The return or destruction of any such Confidential Information shall not relieve the receiving Party from the provisions of this Agreement, which will continue in full force and effect according to its remaining terms.

3.4 The obligations of confidentiality under this Agreement shall be inapplicable with respect to any information which: (a) Is already known prior to working with QCFS at the time of receipt thereof or is independently developed by the receiving Party without the use of Confidential Information of the disclosing Party; or (b) Is publicly available at the time of its receipt by the receiving Party or subsequently becomes publicly available other than through a breach of this Agreement, but such subsequent public availability shall not relieve the receiving Party from liability for any unauthorized disclosure prior to such subsequent date; or (c) Is received by the receiving Party from a third party who is not under a restriction or duty of confidentiality with respect to such information, but such receipt shall not relieve the receiving Party from liability for any unauthorized disclosure prior to such receipt. Specific information shall not be deemed subject to any of the foregoing exceptions merely because it is embraced by more general information subject to one or more of such exceptions, nor shall specific combinations of information be deemed subject to any of the foregoing exceptions merely because the individual items which make up the combination are embraced by one or more of such exceptions.

3.5 The Parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, 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 and take all steps to ensure its confidentiality.

3.6 In the event that a Party, or the Party’s agents, advisors or representatives, are requested or required (by oral questions, interrogatories, request for information or documents, subpoena or similar process) to disclose any Confidential Information of the other Party, the Party agrees to cooperate with the other Party and provide it with prompt notice of such request(s) so that the other Party may seek an appropriate protective order and/or waive compliance by the undersigned with the provisions of this Agreement.

3.7 Neither the Parties nor any of their directors, officers, employees, shareholders, members, agents, representatives or advisors shall be deemed to make or have made any representation or warranty as to the accuracy or completeness of the Confidential Information. Neither Party nor any of its directors, officers, employees, shareholders, members, agents, representatives or advisors shall have any liability to the other Party or to its representatives, agents or advisors resulting from the use of its Confidential Information.

3.8 Each Party agrees that any actual or threatened disclosure or misuse of Confidential Information as prohibited hereunder shall give rise to remedies at law and in equity, including actions for damages or injunction relief. The Parties further acknowledge that the amount and kind of such damages may be difficult to ascertain, immediate, irreparable, continuous, and recovery at law alone may be inadequate. Therefore, the Parties confirm that, in addition to all other remedies that a Party may be entitled to as a matter of law, the Party shall be entitled to equitable and injunctive relief (in addition to all legal remedies) to enforce the provisions of this Agreement

4. Term.

4.1 The confidentiality and use provisions in this Agreement shall continue in perpetuity beyond the terms of this Agreement or the Software Agreement signed contemporaneously herewith.  Subscriber agrees to place software tools on company website within 30 days of signing this agreement.

4.2 Provider has rights to terminate agreement and disable software with written notice at its sole discretion and not for a reasonable standard.

5. Misc.

5.1 Relationship between Subscriber and Provider. Provider represents and warrants that it is an independent contractor with no authority to contract for Subscriber or in any way to bind or to commit Subscriber to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Subscriber. Under no circumstances shall Provider, or any of its staff, if any, hold itself out as or be considered an agent, employee, joint venture, or partner of Subscriber. In recognition of Provider’s status as an independent contractor, Subscriber shall carry no Workers’ Compensation insurance or any health or accident insurance to cover Provider or Provider’s agents or staff, if any. Subscriber shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employee/employer relationship. Neither Provider nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of Subscriber.

5.2 Subcontractors. Subscriber shall not enter into any subcontracts for the performance of the Services, or assign or transfer any of its rights or obligations under this Agreement, without Provider’s prior written consent and any attempt to do so shall be void and without further effect and shall be a material breach of this Agreement. The Parties’ use of subcontractors shall not relieve Subscriber of any of its duties or obligations under this Agreement.

5.3 Taxes. Subscriber represents and warrants that it is an independent contractor for purposes of federal, state, and local taxes. Subscriber agrees that Provider is not responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for Provider. Any and all taxes, interest, or penalties, including any federal, state, or local withholding or employment taxes, imposed, assessed, or levied as a result of this Agreement shall be paid or withheld by Subscriber.

5.4 Except as expressly set forth herein, no license is granted by either party to the other with respect to the Confidential Information or Preexisting Materials. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information or Preexisting Materials, except as may be provided under a license specifically applicable to such Confidential Information or Preexisting Materials. The use and/or services provided under this Agreement does not provide Subscriber with or create ownership rights or any rights that interfere with patent(s) or trademark(s) rights or interests held by Provider.

5.5 Any modification or waiver of any of the terms of this Agreement must be agreed in writing signed by a duly authorized representative of each of the Parties hereto.

5.6 This Agreement shall be construed and governed by the laws of the State of Arizona without regard to choice of law provisions that would allow or require the application of the law of another jurisdiction. The breaching party agrees to the personal jurisdiction of the Arizona Courts if a dispute over this agreement is litigated. The Parties agree that should a party prevail in a court of law for breach of this Agreement or the Software Agreement, the prevailing party shall be entitled to attorney’s fees and costs.

5.7 This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

5.8 Subscriber agrees to indemnify and hold harmless Provider against loss or threatened loss or expense by reason of the liability or potential liability of Provider arising out of the use of software of services provided by Provider. This indemnification provision includes the cost of defense for any claim or threatened claim against Provider arising out of the terms or services provided under this agreement. Subscriber understands and agrees that Provider shall have the right to pursue any claims on behalf of Subscriber arising out of the breach of any of the terms of this Agreement, should Provider at its sole discretion need to enforce its rights under this Agreement. This includes but is not limited to legal and injunctive rights against Subscriber and third parties. Subscriber agrees to keep a backup of all documents uploaded into the system and holds QCFS harmless in the event of a data loss or damages flowing therefrom.

5.9 This agreement benefits and binds the Parties and their respective successors and assigns, including but not limited to their agents, employees, subsidiaries and parent companies.

6. User Generated Content

6.1 All Consumer generated information coming through the Kitchen Visualizer or Quoting Tool are the sole property of Provider unless Subscriber upgrades to a paid subscription that grants access to that information.

6.2 Our Right to Use Your Content. You acknowledge and agree that any Content you post or provide may be viewed by the general public and will not be treated as private, proprietary or confidential. You authorize us and our affiliates, licensees and sub-licensees, without compensation to you or others, to copy, adapt, create derivative works of, reproduce, incorporate, distribute, publicly display or otherwise use or exploit such Content throughout the world in any format or media (whether now known or hereafter created) for the duration of any copyright or other rights in such Content, and such permission shall be perpetual and may not be revoked for any reason. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in any Content posted or provided by you.

7. AGREEMENT TO ARBITRATE ALL DISPUTES AND GOVERNING LAW

7.1 The exclusive means of resolving any dispute between you and QCFS or any claim or controversy arising out of or relating to use of this Website and/or Quote Countertops  services (including any alleged breach of these Terms and Conditions) shall be BINDING ARBITRATION administered by the American Arbitration Association, EXCEPT AS EXPRESSLY PROVIDED BY APPLICABLE FEDERAL OR STATE LAW. You may not under any circumstances commence, participate in or maintain against QCFS dba Quote Countertops any class action, class arbitration, or other representative action or proceeding.

8. GENERAL PROVISIONS

8.1 You acknowledge and agree that the Provider’s Software provided to you on an "AS IS" basis without any warranty whatsoever, and your sole and exclusive remedy, and Provider’'s sole obligation to you or any third party for any claim arising out of your use of the Provider’s Software, is that you are free to discontinue your use of the HomeAdvisor Services or the Provider or apps at any time. EXCEPT AS EXPRESSLY SET FORTH HEREIN, QCFS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND YOU AGREE THAT HomeAdvisor SHALL HAVE NO LIABILITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFIT), EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF QCFS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF THIS AGREEMENT OR ANY CONSEQUENCES WHICH FLOW FROM IT. SOME STATES AND PROVINCES DO NOT ALLOW LIMITATIONS ON OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES AND PROVINCES, THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. The Terms and Conditions will inure to the benefit of Provider's successors, assigns and licensees. If any provision of these Terms and Conditions shall be deemed unlawful, void or unenforceable, for any reason, by any court of competent jurisdiction that provision shall be modified in order to make it enforceable, while maintaining the spirit of the provision. Alternatively, if modification is not possible, such provision shall be stricken and shall not affect the validity and enforceability of the remaining terms. The failure of Providers to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms and Conditions are for convenience only and have no legal or contractual effect.. You agree to submit to jurisdiction in Arizona and that any claim arising out of or related to these Terms and Conditions will be brought solely in a court in Arizona. These Terms and Conditions constitute the entire agreement between you and QCFS and supersede all oral and written negotiations or representations of the parties with respect to the subject matter hereof. These Terms and Conditions may not be modified or amended other than by an agreement signed by both parties.

9. SOFTWARE OWNERSHIP

9.1 Software Ownership: Subscriber understands and agrees that they shall have no ownership rights or interest in any software, specifications, technology and information, customer data and similar items relating to the business of QCFS or any other affiliate company, whether prepared or created by Provider, Subscriber, or both Provider and Subscriber (or the employees or affiliates of either party). Subscriber understands and agrees that he or his affiliates may create or contribute to the business, software or technology utilized by QCFS or its affiliate companies. Nonetheless, Provider understands and agrees that Subscriber shall not claim any right to or interest in, equity, data collection or otherwise, in the business, software, technology or any improvement or benefit provided to or conferred upon or in Provider or any other affiliate Companies.

10. USE RESTRICTION

10.1 Subscriber or any other affiliate company agrees not to participate in the creation of any other “Quote Comparison Tool” calculating material and installation or labor costs or a “Visualizer” for any home improvement within (3) years of the termination of this agreement. If Subscriber is currently creating or previously created a “Quoting tool” or “Visualizer, it must be disclosed to Provider for authorization before Subscriber uses this SAAS based software.

 

10. CUSTOMER INFORMATION

10.1 It is agreed and understood by subscriber that all data collection derived from the use of QCFS software is owned by QCFS and subscriber has no rights to the data collected by this system even if the data collected results from direct use of the software through Subscriber’s online, retail, or any business method.

10.2 In the event that Subscriber purchases leads or any other form of data from Provider, Subscriber agrees all customer data purchased through individual lead or unlimited lead subscriptions agreements, shall still remain the exclusive property of QCFS.

10.3 Subscriber agrees to provide all of the necessary data protection users of this SASS based service. Subscriber agrees and understands that the Subscriber is responsible to provide al necessary acknowledgements to consumers or users of this software.

11. TERMINATION

11.1 Provider has the right to terminate this agreement at any time with Subscriber. If Provider terminates this agreement, subscriber agrees and understands that any access granted to data collection, pricing, visualization or customer information shall be revoked by Provider and remain the exclusive property of QCFS.

12. NOTICE OF RIGHTS

11.1 By using the Website and/or QCFS services in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and QCFS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. For details on the arbitration process, see our Arbitration Procedures. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against QCFS may be commenced only in the federal or state courts located in Arizona Courts. You hereby irrevocably consent to the jurisdiction of those courts for such purposes. These Terms and Conditions, and any dispute between you and QCFS, shall be governed by the laws of the state of Arizona without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.

13. INTERPRETATION

No ambiguities should be interpreted against any Party to this Agreement.

14. READ AND UNDERSTOOD

Each Party hereby acknowledges that they have read and understood this Agreement. Each Party further acknowledges that they have had the opportunity to consult with counsel of their choosing with regards to the terms and conditions of this Agreement and have either done so or freely elected not to do so.

15. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement and understanding between the Parties. Any prior negotiations, agreements or representations that have been made or relied upon that are not expressly set forth will have no force or effect.

 

 

IN WITNESS THEREOF , by accepting the terms and conditions this has caused this Agreement to be agreed to by their duly authorized representatives.