TERMS OF SERVICE

These terms and conditions of service are between the customer agreeing to be bound by them (the “Customer”) and Quantum Market Research, Inc. (“Quantum Workplace”) and shall govern Customer’s use of the Quantum Workplace employee engagement platform and Quantum Workplace services related to Customer’s subscription to the platform, as such “Services” shall be further detailed under a separate order form (an “Order Form”) between Customer and Quantum Workplace (these terms and conditions and the Order Form shall collectively be referred to as the “Agreement”). Customer may not access or use any Services unless Customer agrees to bound by and abide by all of the terms and conditions in this Agreement. 

(a) Subject to the terms and conditions of this Agreement, Quantum Workplace grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users (defined below). Such use is limited to Customer’s internal use. Customer must use the Services in a lawful manner, and must obey all laws, rules, and regulations applicable to Customer’s use of the Services. An “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder. 

(b) Quantum Workplace has and will retain sole control over the operation, provision, maintenance, and management of the Services. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property (defined below) in or relating to, the Services. All right, title, and interest in and to the Services, and Quantum Workplace Intellectual Property, are and will remain with Quantum Workplace. Quantum Workplace may from time to time in its discretion engage third parties to perform or assist in the performance of the Services (each, a “Subcontractor”). “Intellectual Property” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, source code, object code, or other intellectual property rights and all similar or equivalent rights or forms of protection, in any part of the world. 

(c) Quantum Workplace may, directly or indirectly, and by use of a disabling or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (i) Quantum Workplace receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Quantum Workplace to do so; (ii) necessary for scheduled maintenance or unplanned emergency maintenance, including as necessary to maintain the security or integrity of Quantum Workplace’s network, hardware, or associated systems or those of third party providers; or (iii) Quantum Workplace believes, in its reasonable discretion, that: (A) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement (and to the extent such failure or noncompliance is curable, Customer has not cured such failure or noncompliance within five (5) days following Quantum Workplace’s notice); (B) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (C) this Agreement expires or is terminated. This Section 1(c) does not limit any of Quantum Workplace’s other rights or remedies, whether at law, in equity, or under this Agreement.  

Customer shall not use the Services for any purposes beyond the scope of the access granted in Section 1(a) of this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) copy, modify, or create derivative works of the Services, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (d) remove any proprietary notices from the Services; or (e) use the Services 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. Customer will ensure its Authorized Users comply with the terms of this Agreement. Customer will be liable for all acts and omissions taken through its or an Authorized User’s account. 

Quantum Workplace shall provide the Services in a professional, workmanlike manner consistent with industry standards, and the Services shall include security controls, customization, system integration, user identification and password change management, data import and export, monitoring, technical support, maintenance, training, and backup and recovery, as Detailed in the Order Form and the documentation provided by Quantum Workplace in connection with the Services. During the term of this Agreement, Quantum Workplace shall not materially reduce functionality in the Services. 

Customer shall timely provide Quantum Workplace with sufficient documentation, information, assistance, support and data to enable Quantum Workplace to perform the Services. Quantum Workplace shall not be responsible for any failure to perform the Services that is directly caused by Customer’s noncompliance with the terms of this Agreement. All Customer deliverables shall meet the reasonable quality and formatting requirements outlined by Quantum Workplace, including but not limited to adherence to template instructions and requirements for related documents, demographics, and communications. Further, Customer shall ensure that all individuals who take surveys created by Customer or an Authorized User (“End User”) understand the purpose and intent of Customer’s use of the Services. Customer agrees to (a) accurately communicate, and not misrepresent, the nature of the Services and any applicable privacy terms relating to their responses or submissions via the Services by End Users; (b) provide Customer’s End Users an effective way to contact Customer in the event of any questions; and (c) not use Services in a manner that is unfair or deceptive. 

Additionally, Customer will immediately notify Quantum Workplace of any actual or threatened unauthorized use of or access to the Services that comes to Customer or an Authorized User’s attention. In the event of any such unauthorized use, Customer will take all steps necessary to terminate such unauthorized use or threatened activity and to mitigate its effects. Customer will provide Quantum Workplace with all necessary cooperation and assistance related to any such unauthorized use as Quantum Workplace may reasonably request. Notification of such unauthorized use or other security concerns should be reported to dataprotection@quantumworkplace.com.  

This Agreement is effective on the date set forth in an Order Form, and will continue until terminated in accordance with this Agreement (the “Term”). Customer Data will be stored internally by Quantum Workplace for an additional sixty (60) days following any termination or non-renewal of this Agreement, subject to the provisions of Section 7(b). 

In exchange for the Services to be provided to Customer by Quantum Workplace, Customer shall pay Quantum Workplace the “Subscription Fees” detailed in an Order Form. 

Quantum Workplace Subscription Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, or use taxes ("Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on Quantum Workplace's net income. If Quantum Workplace has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Quantum Workplace with a valid tax exemption certificate authorized by the appropriate taxing authority. If applicable, Customer must provide the tax-exempt certificate within twenty (20) days of the date of the invoice. 

Subscription Fees and any included Taxes are payable within thirty (30) days of the invoice billing dates, unless contrary payment terms are detailed in the Order Form. 

(a) Quantum Workplace Confidential Information.  

Customer acknowledges and agrees that Quantum Workplace’s Services and Intellectual Property embodies substantial creative efforts and confidential information, ideas, and expressions (the “QW Confidential Information”). Accordingly, Customer agrees to treat, and ensure that its Authorized Users and employees treat, the QW Confidential Information as confidential in accordance with the confidentiality requirements and conditions set forth in this Agreement. Customer acknowledges that the unauthorized use, transfer, or disclosure of the QW Confidential Information and its components or copies thereof, will (i) substantially diminish the value to Quantum Workplace of the trade secrets and other proprietary interests that are the subject of this Agreement; (ii) render Quantum Workplace’s remedy at law for such unauthorized use, disclosure, or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If Customer breaches or threatens to breach any of its obligations with respect to the use or confidentiality of the QW Confidential Information, Quantum Workplace shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief. Customer’s obligations under this Section shall survive the termination of this Agreement. 

(b) Customer Data. 

Protection of personal data is very important to Quantum Workplace. The “Privacy Policy,” which can be found at https://www.quantumworkplace.com/privacy-policy, incorporated herein by reference, explains how and for what purposes Quantum Workplace collects, uses, retains, discloses, and safeguards the personal data Customer provides to Quantum Workplace. All data uploaded by Customer, including all survey and performance management system related data, personal information of Customer’s employees and all analytics data derived therefrom (“Customer Data”) remains the sole and exclusive property of Customer and shall be considered and treated by Quantum Workplace as confidential information of Customer. During the term of this Agreement, in addition to the foregoing, the Services will be performed in accordance with industry standards for confidentiality and anonymity of the end users and survey responders, and Quantum Workplace will deliver data and analytics in a manner reasonably designed to not reveal the identity of end users without their explicit permission. For sixty (60) days following the expiration or termination of this Agreement, Customer may access and download a copy of all Customer Data or request Quantum Workplace to provide a copy of all such Customer Data in a format reasonably agreed to by the parties. Customer grants Quantum Workplace a worldwide, royalty free, perpetual license and right to use, disclose, store, and modify the Customer Data for purposes of performing the Services under this Agreement, as is necessary or useful for Quantum Workplace’s internal business, to improve the Services, and as may be permitted under the Privacy Policy or applicable law, including the ability to aggregate and de-identify Customer Data and retain such aggregated and de-identified Customer Data subject to Quantum Workplace’s confidentiality and disclosures obligations hereunder. 

All Customer Data will be encrypted at-rest and in-transit by Quantum Workplace. Customer may request that Quantum Workplace destroy Customer Data at any time, and any Customer Data retained by Quantum Workplace will remain subject to the confidentiality and disclosure obligations of this Section. Customer Data will be kept isolated from and not co-mingled with the data of other Quantum Workplace customers through logical separation using appropriately strong keys and logical separation techniques. Except as permitted herein, Quantum Workplace will not use, sell, rent, transfer, distribute, or otherwise disclose or make available Customer Data for Quantum Workplace’s own purposes or for the benefit of anyone other than Customer without Customer’s prior written consent. 

(c) Mutual Confidentiality.  

Each party also agrees to keep confidential (i) all information identified as such by the party providing such information, and, (ii) if not so identified, all information, if given the circumstances surrounding disclosure, a reasonable person would assume the information is confidential and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own, at all times exercising at least a reasonable degree of care in the protection of such confidential information.

Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; (b) neither Customer nor any of its affiliates appears on the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”), is a person identified as a terrorist organization on any relevant lists maintained by governmental authorities, is located in, organized in, or resides in a country that is the subject or target of sanctions administered or enforced through OFAC (“Sanctions”), is itself the subject or target of Sanctions, nor is otherwise a party with which Quantum Workplace is prohibited to deal under the laws of the United States (collectively, “Blocked Persons”); (c) Customer is not owned or Controlled, directly or indirectly, by Blocked Persons; (d) Customer, as applicable, has conducted thorough due diligence with respect to all of its beneficial owners, established the identities of all direct and indirect beneficial owners and the source of each beneficial owner’s funds, and will retain evidence of those identities, any source of funds, and any due diligence; and (e) the information Customer provides in registering for the Services is accurate, complete, and the Customer has the right to use and disclose such information to Quantum Workplace. 

Quantum Workplace’s technology, systems and network(s) for providing the Services will utilize generally accepted security measures designed to provide physical, administrative and technical safeguards to Customer Data and to secure any credentials and communication connections necessary to gain access to any data repository or system operated by or on behalf of Customer. In the event of any breach or unauthorized use of such credentials or connections, Quantum Workplace shall promptly notify Customer of such breach or unauthorized use. Quantum Workplace represents and warrants that to the best of its knowledge the Services do not and will not infringe the rights of any third party, and will be provided in accordance with applicable law, including any Federal or State privacy laws related to Customer Data. 

(a) Customer Indemnification. Customer shall defend, indemnify and hold harmless Quantum Workplace from and against any damages, losses, costs, liabilities or expenses (including without limitation costs and attorneys’ fees), in connection with any claim or action that arises from or as a result of: (i) Customer Data or activities hereunder with respect to any Customer Data; (ii) any breach by Customer under this Agreement or any failure to comply with applicable laws and regulations; or (iii) Customer’s use of the Services.  

(b) Quantum Workplace Indemnification. Quantum Workplace shall defend, indemnify, and hold Customer harmless from and against any damages, losses, costs, liabilities or expenses (including without limitation costs and attorneys’ fees) to unaffiliated third parties that in connection with any claim or action that arises from or as a result of infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Quantum Workplace, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Quantum Workplace, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Quantum Workplace from all damages, costs, settlements, attorneys' fees and expenses related to any claim of infringement or misappropriation excluded from Quantum Workplace’s indemnity obligation by the preceding sentence. 

(c) Indemnification Process. A party seeking to be indemnified under this Section 10 shall (i) promptly notify the other party of such threats, claims, or proceedings related thereto; (ii) grant the other party the sole control over the defense of such claim, provided the indemnified party shall not be obligated to admit fault; and (iii) fully cooperate with the indemnifying party at the expense of the indemnifying party. Neither party shall be indemnified for any matter caused by its own gross negligence, willful misconduct or fraud. 

(a) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES AND AGREES THAT QUANTUM WORKPLACE’S SOFTWARE IS LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, COMPLETENESS, ADEQUACY OF INFORMATION, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. NO DATA, DOCUMENTATION OR ANY OTHER INFORMATION PROVIDED BY QUANTUM WORKPLACE OR OBTAINED BY CUSTOMER FROM OR THROUGH THE SERVICES CREATES OR IMPLIES ANY WARRANTY FROM QUANTUM WORKPLACE TO CUSTOMER.  

(b) IN NO EVENT SHALL QUANTUM WORKPLACE BE LIABLE FOR ANY DAMAGES, INCLUDING INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF THE USE OF ITS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.  

(c) A party’s liability (whether arising in tort, contract or otherwise and notwithstanding any fault, negligence (whether active, passive or imputed, product liability or strict liability of a party) under this Agreement or regarding any of the products or Services rendered by the parties under this Agreement will in no event exceed the aggregate amount of the Subscription Fees paid under this Agreement for the twelve (12) month period ending on the date that a claim or demand is first asserted. Provided, however, in the event any legal proceedings must be instituted by Quantum Workplace to recover the fees or other amounts due it from Customer under this Agreement, Quantum Workplace shall be entitled to recover any costs associated with such collection.  

(d) The limitations set forth in this Section 11 will apply notwithstanding any failure of essential purpose of any limited remedy. Notwithstanding the terms of this Section 11, the parties agree that Section 11(c) shall not apply to limit any claim under this Agreement to the extent arising out of or relating to a party’s gross negligence or fraud. 

(a) Quantum Workplace may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after delivery of written notice thereof. 

(b) Either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. 

(c) Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) 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; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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. 

Customer consents to electronic provision of all disclosures and notices from Quantum Workplace (“Notices”), including those required by law. Customer also agrees that any electronic consent will have the same legal effect as a physical signature. Customer agrees that Quantum Workplace can provide effective Notices regarding the Services to Customer through Quantum Workplace’s website or through the dashboard via the Services, or by mailing Notices to the email or physical addresses identified in an Order Form. Notices may include, without limitation, notifications about Customer’s account, changes to the Services, or other information Quantum Workplace is required to provide to Customer. Customer also agrees that electronic delivery of a Notice has the same legal effect as if Quantum Workplace provided Customer with a physical copy. Any Notice will be deemed to have been received by Customer following twenty-four (24) hours after the time such Notice is either posted to Quantum Workplace’s website or emailed to Customer. Customer may need a computer or mobile device, Internet connectivity, and an updated browser to access the Services and review the Notices provided to Customer. If Customer is having problems viewing or accessing any Notices, Customer is encouraged to contact Quantum Workplace and Quantum Workplace can provide an alternative means of delivery. Due to the nature of the Services, Customer will not be able to begin using the Services without agreeing to electronic delivery of Notices. 

This Agreement, an Order Form and any Order Form Exhibits or Addenda contain the entire understanding and agreement between the parties respecting the subject matter hereof and supersedes all previous oral or written agreements and communications. 

Quantum Workplace has the right to change or add to these terms of service at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on Quantum Workplace’s website. Quantum Workplace will provide Customer with notice of any changes through the Services, via email, or through other reasonable means. If Customer is an existing customer of the Services, the changes will come into effect ten (10) days after Quantum Workplace posts the changes to Quantum Workplace’s website, and Customer’s use of the Services ten (10) days or more after Quantum Workplace publishes any such changes on Quantum Workplace’s website constitutes Customer’s unambiguous acceptance of the terms of the modified Agreement. Customer can access a copy of the current terms of this Agreement on Quantum Workplace’s website at any time. Customer can find out when this Agreement was last changed by checking the “Last updated” date at the top of the Agreement. 

Quantum Workplace’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. 

Customer may not assign this Agreement, any rights or licenses granted in this Agreement, or operation of Customer’s account to others without Quantum Workplace’s prior written consent, not to be unreasonably withheld. If Customer wish to make such an assignment, please contact Quantum Workplace. If Quantum Workplace consents to the assignment, the assignee must agree to assume all of Customer’s rights and obligations owed by Customer related to the assignment, and must agree to comply with the terms of this Agreement. Quantum Workplace may not assign this Agreement without Customer’s consent or any other restriction, provided that, Quantum Workplace may assign this Agreement without the consent of Customer in the event of a merger, acquisition, sale of substantially all assets, or change of control of Quantum Workplace.  

The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. Any use of or access to third-party software shall be subject to the license terms and conditions of such third-party software. 

(a) All matters relating to the Services and this Agreement and any dispute or claim arising therefrom or related thereto, shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction). 

(b) Any legal suit, action or proceeding arising out of, or related to, this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Nebraska, in each case located in the City of Omaha and County of Douglas. Customer waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts. 

Neither party will be liable for any delays in processing or other nonperformance caused by telecommunications, utility, failures, or equipment failures; labor strife, riots, war, pandemics, or terrorist attacks; nonperformance of Quantum Workplace’s vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse Customer’s liabilities or Customer’s obligation to pay Subscription Fees under this Agreement. 

In the event that any provision of this Agreement shall be held by a court to be unenforceable or invalid for any reason, such provision shall be modified or deleted in such a manner as to make this Agreement, as modified, legal and enforceable to the fullest extent of the law. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect.