1. Definitions

"Aggregated Statistics" means data and information related to Customer's use of the Quantum Software that is used by Quantum in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Quantum Software.
"Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Quantum Software under the rights granted to Customer pursuant to this Agreement, and (ii) for whom access to the Quantum Software has been purchased hereunder.
"Customer Data", other than Aggregated Statistics, is defined in Section 6(e)."Quantum Software" means the software-as-a-service offering described in the Order Form, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Quantum Software includes Aggregated Statistics and any information, data, or other content derived from Quantum's monitoring of Customer's access to or use of the Quantum Software. 
“Hardware Products” means any third-party hardware products described in the Order Form provided with or incorporated into the Quantum Software.

2. Access and Use

Provision of Access. Subject to the terms and conditions of this Agreement, Quantum hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(g)) right to access and use the Quantum Software during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Quantum shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Quantum Software.Use Restrictions. Customer shall not use the Quantum Software for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Quantum Software, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Quantum Software; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Quantum Software, in whole or in part; (iv) remove any proprietary notices from the Quantum Software; or (v) use the Quantum Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.Reservation of Rights. Quantum reserves all rights not expressly granted to Customer in this Agreement, except for the limited rights and licenses expressly granted herein. Nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Quantum Software.  Suspension.  Notwithstanding anything to the contrary in this Agreement, Quantum may temporarily suspend (upon advance written notice to Customer) any portion or all of the Quantum Software if: (i) Quantum reasonably determines that (A) there is a threat or attack on any of the Quantum Software; (B) use of the Quantum Software disrupts or poses a security risk to the Quantum Software or to any other customer or vendor of Quantum; (C) Customer, or any Authorized User, is using the Quantum Software for fraudulent or illegal activities; (D) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Quantum's provision of the Quantum Software is prohibited by applicable law; (ii) any vendor of Quantum has suspended or terminated Quantum's access to or use of any third-party services or products required to enable Customer to access the Quantum Software (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Quantum will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that may result from a Service Suspension.(e) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Quantum may monitor Customer's use of the Quantum Software and collect and compile Aggregated Statistics. As between Quantum and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Quantum. Quantum may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer, non-anonymized Customer Data, or Customer's Confidential Information. 

3. Customer Responsibilities

General.  Customer is responsible and liable for all uses of the Quantum Software resulting from access provided by Customer, directly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Hardware Products. Quantum may Hardware Products available to Customer. For purposes of this Agreement, such Hardware Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Hardware Products, then Customer should not install or use such Hardware Products.

4. Fees and Payment

Fees. Customer shall pay Quantum the fees ("Fees") as set forth in Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form.. If Customer fails to make any payment when due, and if such failure continues for ten (10) days or more, Quantum may suspend access to any portion or all of the Quantum Software until such amounts are paid in full.Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Quantum's income.

5. Confidential Information

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is/and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information upon prior notice to the other Party and to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. 

6. Intellectual Property Ownership

Quantum Software. Quantum owns all right, title, and interest, including all intellectual property rights, in and to the Quantum Software.Customer Data. Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data, except for Aggregated Statistics. Customer hereby grants to Quantum a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Quantum to provide the Quantum Software to Customer.  Feedback.  If Customer or any of its employees or contractors sends or transmits any communications or materials to Quantum by mail, email, electronic communication, telephone, or otherwise, suggesting or recommending changes to the Quantum Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Quantum is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.  Customer hereby assigns to Quantum on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title and interest in, and Quantum is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Quantum is not required to use any Feedback. Personal Information.  Quantum agrees to use any personal information collected, such as end user’s names, email addresses, etc. (the “Personal Information”), solely for the purposes of providing the Quantum Software hereunder, and Quantum shall in no event and in no way whatsoever use any Personal Information, or any other information obtained, for any other purpose, including in connection with any of Quantum’s other clients, services or promotional engagements.  Use of Customer Intellectual Property.  Quantum hereby agrees that it shall not develop, create, distribute, or promote any service, product, platform, data or other information (including, without limitation, the Quantum Software) that in any way references any name, trademark, symbol, emblem, design, logo, photograph, footage, uniform design or identification of Customer or its member teams or their respective affiliates, except for the mention of Customer on Quantum’s website or promotional materials, subject to Customer’s prior written approval in each instance (such approval not to be unreasonably withheld or delayed).  Notwithstanding the foregoing, Customer and Quantum will discuss in good faith certain promotional opportunities (e.g., a press release, public statement) in connection with the Quantum Software, provided that any such opportunity (including any related copy and creative materials) shall be subject to Customer’s prior written approval.Information Security. Quantum shall implement, maintain, and adhere to a written information security program that incorporates appropriate administrative, physical, and technical safeguards and security procedures to protect the Confidential Information. To the extent commercially and reasonably feasible, Quantum will perform applicable industry standard Illicit Code checks using up-to-date Illicit Code detection and scanning programs to remove and prevent the introduction of any Illicit Code in any Quantum Software. “Illicit Code” means viruses, malware, worms, time bombs, Trojan Horses, backdoors, trapdoors, and any other harmful or malicious code. Quantum shall use reasonable efforts to prevent any actual or suspected (i) unauthorized access or use of Confidential Information, or (ii) acts or omissions that threaten the security, confidentiality, or integrity of Confidential Information (each, a “Security Breach”).

7. Limited Warranty and Warranty Disclaimer

SOFTWARE. QUANTUM DOES NOT MAKE ANY REPRESENTATIONS OR GUARANTEES REGARDING UPTIME OR AVAILABILITY OF THE SERVICES. THE QUANTUM SOFTWARE IS PROVIDED "AS IS" AND QUANTUM HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. QUANTUM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. QUANTUM MAKES NO WARRANTY OF ANY KIND THAT THE QUANTUM SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE THE INTENDED RESULT, BE COMPATIBLE OR WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OR HARMFUL CODE, OR ERROR FREE.THIRD-PARTY HARDWARE PRODUCTS. QUANTUM STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY HARDWARE PRODUCTS.

8. Indemnification

Quantum Indemnification.Quantum shall indemnify, defend, and hold harmless Customer, its affiliates, its parent companies, its subsidiaries, its employees, and its directors from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that results from the following: (A) the Quantum Software infringes or misappropriates such third party's US intellectual property rights/US patents, copyrights, or trade secrets; or (B) any unauthorized access or use of any Customer Data not caused directly or indirectly by Customer; provided that Customer promptly notifies Quantum in writing of any such Third-Party Claim, cooperates with Quantum, and allows Quantum sole authority (in coordination with Customer) to control the defense and settlement of such Third-Party Claim.  Customer agrees and understands that Quantum’s obligations under this section are subject to the limitations of liability specified in Section 9.If a Third Party-Claim is made or appears possible, Customer agrees to permit Quantum, at Quantum’s sole discretion, to (A) modify or replace the Quantum Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Quantum determines that neither alternative is reasonably available, Quantum may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. Section 8(a)(i) shall not apply to the extent that the alleged infringement arises from: (A) use of the Quantum Software in combination with data, software, hardware, equipment, or technology not provided or authorized by Quantum in writing; (B) modifications to the Quantum Software not made by Quantum; or (D) Hardware Products.Customer Indemnification. Customer shall indemnify, hold harmless, and, at Quantum’s option, defend Quantum, its affiliates, its parent companies, its subsidiaries, its employees, and its directors from and against any Losses resulting from any Third-Party Claim that results from the following: (A) the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; or (B) Customer’s misuse of the Quantum Software, acts or omissions, negligence, recklessness or willful misconduct; provided that Quantum promptly notifies Customer in writing of any such Third-Party Claim, cooperates with Customer, and allows Customer sole authority (in consultation with Quantum) to control the defense and settlement of such Third-Party Claim.Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND QUANTUM’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

9. Limitations of Liability; Maximum Liability

No Consequential or Indirect Damages. IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; OR (D) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.   (b) Maximum Liability. IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE SERVICE FEE ACTUALLY PAID TO QUANTUM UNDER THIS AGREEMENT IN THE 1-YEAR PERIOD (NOT INCLUDING THIRD-PARTY HARDWARE PRODUCT COSTS) PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $25,000, WHICHEVER IS GREATER. CUSTOMER AGREES AND UNDERSTANDS THAT TO THE EXTENT THAT ANY AND ALL PROVISIONS IN THIS AGREEMENT REGARDING INDEMNITY CONFLICT WITH THIS LIMITATION OF LIABILITY, THEY SHALL BE DEEMED TO BE AMENDED TO BE CONSISTENT WITH THIS PARAGRAPH AND THE LIMITS OF LIABILITY CONTAINED WITHIN IT.

10. Term and Termination

Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect for a period of ninety (90) days (the "Trial Period or Term").  Termination. In addition to any other express termination right set forth in this Agreement:Quantum may terminate this Agreement, effective on written notice to Customer, if Customer: (A) breaches any of its obligations under Section 2(b) or Section 5, or if Customer can remedy Customer’s failure, and such failure continues more than 30 days after Quantum’s delivery of written notice thereof; or (B) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Quantum’s delivery of written notice thereof. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Quantum Software. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.  Survival. Section(s)1, 4, 5, 6, 7, 8, 9, and 11 survive any termination or expiration of this Agreement.

11. Miscellaneous

Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and the Order Form, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemics, epidemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.  Notwithstanding the foregoing, Customer must pay any outstanding fees due prior to any such force majeure event, if applicable, and if such event applies, Quantum shall extend the term of the subscription for the time period of the delay where Customer was unable to perform due to such event or circumstances. Amendment and Modification; Waiver.  No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign this Agreement without prior consent to an affiliate or affiliated entity or to a successor in interest, or in connection with any merger, consolidation, any sale of all or substantially all of such party’s assets or any other transaction in which more than fifty (50%) percent of its voting securities are transferred. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.