General Terms and Conditions
In the Agreement, except where the contrary intention is expressed:
Addendum means the Enterprise License Agreement Addendum or Master Supply Agreement Protect Addendum, as applicable.
Agreement means, as applicable, the Master Supply Agreement and/or Addendum of which these terms form a part.
Cloud Service means one or more hosted or cloud-based solutions provided through the myNVivo™ Portal.
Customer (or 'you') means the customer entity which is a party to the Agreement.
Data Protection Addendum means the QSR Data Protection Addendum available at Data Protection Addendum
Documentation means the then-current operating manuals, release notes, course materials, modules, text books, streaming videos, tests, software, and any other tools or materials that reside in the public domain or made available by QSR regarding the proper installation and use of the Platform.
Fees means the pre-paid and periodic amounts payable by the Customer for use of Licensed Software or a Cloud Service, as specified in the relevant Product Schedule.
GDPR means the EU General Data Protection Regulation 2016/679.
Licensed Software means QSR software products which are licensed by QSR for on-premises installation and use and which are acquired by you through the myNVivo™ Portal.
NVivo™ Cloud Platform means the IT infrastructure and networks owned, licensed or managed by us, which are used by QSR and its service providers to provide a Cloud Service.
myNVivo™ Portal means the QSR Portal at portal.mynvivo.com.
Parties means, collectively, QSR and the Customer, and “Party” means either one of them as the context may indicate.
Product means the Licensed Software, the Cloud Services and related services, as specified in the Product Schedules.
Product Schedule means a schedule to the Agreement which sets out the details of the Licensed Software or a Cloud Service and any specific terms applying to that software or service.
QSR (or 'we' or 'us') means the QSR Entity which is a party to the Agreement.
QSR Entity means QSR International, LLC and each of its related entities around the world.
2. Prices and payment
The prices for each of the Products and payment terms are contained in the relevant Product Schedule.
Where initial prices are stated, they are exclusive of taxes, duties, levies or fees. the Customer shall pay all taxes, duties, levies or fees, or other similar charges imposed on QSR or on the Customer by any taxing authority (other than taxes imposed on QSR's income) related to the Customer's order, unless the Customer has provided QSR with an appropriate exemption certificate for the delivery location. 'Delivery location' means the location where QSR transfers title or possession of Products to the Customer or its designate.
4. Intellectual property
- The NVivo™ Cloud Platform, Licensed Software and Cloud Services are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”.
- QSR and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the NVivo™ Cloud Platform, Licensed Software and Cloud Services, their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for QSR.
- The Customer does not have and shall not acquire pursuant to the Agreement any right, title or interest in or to QSR’s trade names, trademarks, service marks, copyrights, trade secrets, patents or any other of QSR’s o intellectual or proprietary rights.
- We represent and warrant that:
- we have the right to enter into the Agreement;
- we have the right to license the Licensed Software and provide the Cloud Services; and
- the Licensed Software and the Cloud Service will operate substantially as described in the relevant Product Schedule.
- To the maximum extent permitted by law, all express or implied guarantees, warranties, representations and other terms and conditions of any kind which are not contained in the Agreement, are hereby expressly excluded.
- If the Customer is a state or federal agency or institution of the United States of America restricted by law from providing warranties or indemnifications, then the Customer agrees to warrant and indemnify QSR to the extent permitted under the laws of the US Constitution, applicable state constitution, and state laws or statutes. This clause shall apply to all warranties and indemnifications provided in the Agreement for customer's that are a state or federal agency or institution of the United States.
- Each Party (the "Receiving Party") may only use the Confidential Information disclosed or revealed by the other Party (the "Disclosing Party") for the purposes of performing its obligations or exercising its rights under the Agreement and must keep such Confidential Information confidential.
- For purposes of this clause 6, "Confidential Information" means any information of whatever kind disclosed or revealed by the Disclosing Party to the Receiving Party under or in relation to the Agreement that:
- is by its nature confidential;
- is designated by the Disclosing Party as confidential; or
- the Receiving Party knows or reasonably ought to know is confidential, including:
- where we are the Disclosing Party, any part of the Cloud Services that are not otherwise publicly available; and
- where you are the Disclosing Party, any of Your Content entered or uploaded to the Cloud Services, but does not include information that:
- is published or has otherwise entered the public domain without a breach of the Agreement;
- is obtained from a third party who has no obligation of confidentiality to the Disclosing Party; or
- is independently developed or obtained without breach of the Agreement.
- The Receiving Party may disclose the Confidential Information of the Disclosing Party:
- to those members, directors, employees, agents, contractors, representatives and/or advisors of the Receiving Party ("Representatives") reasonably requiring it on a need to know basis , provided that the Receiving Party ensures that such Representatives keep such Confidential Information confidential in accordance with this clause6;
- to the extent required by law; or
- with the prior written consent of the Disclosing Party.
- We may refer to the fact that you are a client of ours and a user of the Licensed Software or the Cloud Services in marketing and promotional materials.
7. Privacy and Your Data
- For purposes of this clause 7,
- "Personal Data" means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; and
- "Applicable Data Protection Laws" means all laws, regulations, binding legislative and regulatory requirements and codes of practice relating to data protection and the processing of Personal Data, as may be applicable to either Party or to the Cloud Services, including, without limitation:
- the Australian Privacy Act 1988 (Cth);
- the UK Data Protection Act 2018;
- the GDPR; and
- the Japanese Act on the Protection of Personal Information 2003.
- The Data Processing Addendum, which includes the standard contractual clauses as required under article 28 of the GDPR, forms part of the Agreement.
- You agree that QSR may use the services of third parties to provide part of a Cloud Service ("sub-processor") and that the sub-processor may, as required for the purposes of providing the Cloud Service, process Personal Data provided to us by you.
- Each Party warrants to the other that in relation to the Agreement, it will comply strictly with all requirements of any Applicable Data Protection Laws, whether enacted as at the date of the Agreement or enacted subsequently.
- In using the Cloud Services you must ensure that you are permitted to provide us with any Personal Data you provide to us, and that you have made any disclosures or obtained any consents necessary under any Applicable Data Protection Laws. Subject to the Agreement, we will establish and maintain appropriate, reasonable technical and organisational security measures in accordance with good industry practice to keep Your Content secure.
- We may only transfer any Personal Data you provide to us across a country border in the event that such action is required for the purpose of providing the Cloud Services and complying with our obligations under the Agreement. We will further ensure that the transfer of any Personal Data across a country border complies with Applicable Data Protection Laws.
- We may use and disclose to our service providers anonymous data about your use of the Cloud Services for the purpose of helping us to improve the Cloud Services. Any such disclosure will not include details of your identity or the identity of your associates unless prior consent has been provided for such disclosure.
- You acknowledge that the internet is an insecure public network which means there are risks that information sent to or from the Cloud Services may be intercepted, corrupted or modified by third parties.
- Notwithstanding the foregoing, we will take all steps that a prudent and competent provider of services such as the Cloud Services would be expected to take to maintain the security and the integrity of the Cloud Service. Specifically, we will:
- implement administrative, physical and technical safeguards to protect Your Content that are no less rigorous than accepted industry information security best practices;
- as soon as we become aware that any virus, malware or other harmful code ("Harmful Code") is contained in or affects the Cloud Services provided to you and/or that any of Your Content may have been, or may be subject to unauthorised access, immediately notify you and take all reasonable steps to remedy the problem, secure Your Content, remove the Harmful Code, as applicable, and prevent the situation’s reoccurrence;
- use commercially reasonable efforts to:
- prevent any Harmful Code being contained in, or affecting the, Cloud Service used by you;
- prevent unauthorised access to Your Content;
- prevent any unauthorised access of, and/or Harmful Code being introduced into, your IT systems.
- All personal and credit card information provided to QSR is encoded using Secure Sockets Layer (SSL) technology, an encryption protocol that protects data as it travels over the Internet. Also, QSR uses well established payment gateway service providers called SecurePay and CyberSource to process all online credit card payments. SecurePay and CyberSource are online, real-time payment service providers that provide all the security required for the transmission and storage of credit card details using SSL, encryption minimum 40 bit and firewalls.
9. Term and Termination
- For purposes of this clause 9: “Insolvency Event” means in relation to either Party, any one or more of the following events or circumstances occurring in relation to such Party (or any person comprising such Party): (i) being in liquidation or provisional liquidation or under administration; (ii) having a controller or analogous person appointed to it or any of its property; (iii) being unable to pay its debts or being otherwise insolvent; (vi) entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; and (vii) any analogous event or circumstance under the laws of any jurisdiction.
- The initial term of an Addendum or Agreement will commence on the start date specified in the Addendum or Agreement and, unless terminated earlier in accordance with its terms and conditions, will continue for the minimum period there specified (Initial Term). After the Initial Term, the Addendum or Agreement will renew as provided in the Addendum or Agreement.
- Either Party may terminate an Addendum by notifying the other accordingly:
- where the other Party materially breaches the Addendum or Agreement and fails to remedy that breach within 30 days of receiving notice of the breach; or
- where the other Party suffers an Insolvency Event.
- If an Addendum or Agreement expires or is terminated for any reason, the rights and licences provided to you under the Addendum or Agreement will cease immediately.
- If a Party exercises a right of termination of an Addendum or Agreement, the Addendum or Agreement terminates in its entirety for all Parties.
10. Limitation of Liability
- To the maximum extent permitted by law:
- NEITHER PARTY (NOR ITS SUPPLIERS) WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, REVENUE, SAVINGS OR OPPORTUNITY OR FOR LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR COSTS OF DELAY ARISING UNDER OR IN CONNECTION WITH AN AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), IN EQUITY OR UNDER STATUTE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE;
- EXCEPT FOR A PARTY'S LIABILITY UNDER OR IN CONNECTION WITH A BREACH BY THE CUSTOMER OF THE SPECIFIC LIMITATIONS AND OBLIGATIONS UNDER THE AGREEMENT RELATING TO ITS USE OF A PRODUCT , OR IN CONNECTION WITH AN INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY OR ITS LICENSORS, EACH PARTY'S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS UNDER OR IN CONNECTION WITH AN AGREEMENT IS LIMITED AS FOLLOWS:
- WITH RESPECT TO CLAIMS ARISING OUT OF THE LICENSING OR USE OF LICENSED SOFTWARE, TO THE AMOUNT OF THE LICENSE FEE PAID BY YOU TO USE THE SOFTWARE; and
- WITH RESPECT TO CLAIMS ARISING OUT OF THE PROVISION OR USE OF CLOUD SERVICES, AGGREGATE LIABILITY FOR ALL CLAIMS ARISING IN EACH CONSECUTIVE 12 MONTH PERIOD COMMENCING ON THE DATE OF FIRST USE OF THE SUBSCRIPTION SERVICES IS LIMITED TO AN AMOUNT EQUAL TO THE FEES PAYABLE BY YOU UNDER THE AGREEMENT IN RESPECT OF SUCH 12 MONTH PERIOD, PROVIDED THAT ANY OBLIGATION TO PAY OUTSTANDING FEES OR TO REFUND PREPAID FEES WILL NOT BE CONSIDERED FOR THE PURPOSES OF THIS LIMITATION ON LIABILITY; AND
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER.
- Individual Products will be subject to further exclusions and limitations on liability if so specified in the relevant Product Schedule.
- A Party's liability under the Agreement will be reduced to the extent that the other Party's acts or omissions (or, unless otherwise stated in the Agreement, those of a third party) contribute to or cause the loss or liability.
- The parties agree that the limitations specified in this clause 10 (Limitation of Liability) will survive and apply even if any limited remedy specified in the Agreement is found to have failed of its essential purpose.
- QSR shall defend and indemnify the Customer, its parent, subsidiaries and affiliates, and their respective officers, directors, employees and agents from and against any third party claims that the Platform or any services provided under the Agreement infringes any copyright, patent, trademark or other intellectual property rights of a third party to the extent that such Claim arise solely as a result of Customer's use of the Platform in accordance with the Documentation, and provided the alleged infringement was not caused by:
- the Customer’s failure to incorporate a QSR software update or upgrade that would have avoided the alleged infringement;
- the combination or use of the Platform with software, hardware, firmware, data, or technology not licensed to the Customer by QSR or approved by QSR in writing; or
- unlicensed activities of the Customer.
- QSR’s obligations in this cause are conditional upon:
- the Customer notifying QSR in writing within 10 days of Customer becoming aware of a Claim;
- the Customer not making an admission against QSR’s interests unless made pursuant to a judicial request or order;
- the Customer not agreeing to any settlement of any Claim without the prior written consent of QSR;
- the Customer, at the request of QSR, providing all reasonable assistance to QSR in connection with the defence, litigation, and settlement by QSR of the Claim; and
- QSR having sole control over the selection and retainer of legal counsel, and over the litigation or the settlement of each Claim. QSR will indemnify Customer from any judgment finally awarded, for which all avenues of appeal have been exhausted, or any final settlement in connection with any claims, provided all the conditions of this section are satisfied. This clause shall survive any expiration or termination of the Agreement.
- If the Platform, Product or Services becomes the subject of a Claim, QSR will, in its absolute discretion, either:
- procure for the Customer the right to make continued use thereof;
- replace or modify any component of the Platform so that it becomes non-infringing; or
- refund the unamortized portion of the Fees received by QSR and attributable to the infringing portion of the Software, based on a three (3) year straight line amortization.
- QSR’s entire liability and Customer’s sole and exclusive remedy with respect to any claims are limited to the remedies set out in this clause.
- This clause is subject to Clause 5 above.
At our request, you agree to provide a signed certification that you are using all Licensed Software and Cloud Services pursuant to the Agreement, including the Scope of Use. You agree to allow us, or our authorised agent, to audit your use of the Licensed Software or Cloud Services. We will provide you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to QSR at law or equity or under the Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign (without your consent) the audit rights specified in this section to such licensors.
13. Dispute Resolution
- If a dispute arises out of or relates to the Agreement, a Party may not commence any court proceedings relating to the dispute unless it complies with this clause 13 (Dispute Resolution), except where a Party seeks urgent interlocutory relief.
- A Party claiming that a dispute has arisen under or in relation to the Agreement must give written notice to the other Party specifying the nature of the dispute. On receipt of that notice by that other Party, the Parties must endeavour in good faith to resolve the dispute expeditiously using mediation in accordance with the mediation rules of administered by the American Arbitration Association under its Commercial Mediation Procedures. If the dispute is not resolved within 15 days after the mediator is appointed, or at any other time that the Parties agree to in writing, the mediation ceases and either Party may commence legal proceedings in relation to the dispute.
- All notices, requests, demands and other communications under the Agreement shall be in writing and shall be sent to the addresses listed in the Addendum. Notices shall be effective upon receipt and shall be deemed to be received as follows:
- if delivered by nationally recognized overnight courier, effective the business day following the date of shipment;
- if by mail the earlier of actual receipt or five (5) business days from the date deposited in the mail; and
- if delivered by email, effective on the same day as the receipt of delivery confirmation is received.
- Governing law and jurisdiction: The Agreement is governed by the law of the State of Delaware, United States of America and the Parties consent to the exclusive jurisdiction of the courts of the State of Delaware and the United States of Americas.
- Relationship of Parties: The Parties and their respective employees and representatives are independent contractors. Nothing contained in the Agreement shall be deemed to create any partnership, agency, joint venture or fiduciary relationship between QSR and the Customer for any purpose.
- Force Majeure: Any delay or failure of either party to perform their obligations under the Agreement (excluding obligations to make payment of money due) shall be excused if and to the extent that such delay or failure is caused by an event beyond the reasonable control of the non-performing party, including without limitation, actions by any government authority, fires, floods, natural disasters, riots, wars, failure of or interruptions in telecommunications or data transmission systems not caused by QSR or the Customer.
- Severable Provisions: Any term of the Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable.
- Waiver: The failure by a Party to exercise or delay exercising a right or power under the Agreement does not operate as a waiver of that right or power and does not preclude the future exercise of that right or power.
- Variation: The Agreement may not be modified except by a written agreement signed by QSR and the Customer.
- Assignment: Unless otherwise provided in the Agreement, neither Party may assign, novate or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of the other Party (which consent may not be unreasonably withheld).
- Subcontracting: We may subcontract any of our rights and obligations under the Agreement at any time. We will be liable for the acts and omissions of our personnel and subcontractors as if they were our acts or omissions.
- Entire Agreement: The Agreement constitutes the entire agreement between the Parties in connection with its respective subject matter and supersedes all previous agreements or understandings between the Parties in connection with the relevant subject matter.
- Survival: Clauses 5, 6, 7, 8, 9 and 10 survive termination or expiry of the Agreement together with any other provision which by its nature is intended to do so .
- Cumulative rights: Except as expressly provided in the Agreement, the rights of a Party under the Agreement are in addition to and do not exclude or limit any other rights or remedies provided by law.
- Interpretation: In the Agreement, the following rules of interpretation apply unless the contrary intention appears:
- headings are for convenience only and do not affect the interpretation of the Agreement;
- the words 'such as', 'including', 'particularly' and similar expressions are not used as nor are intended to be interpreted as words of limitation;
- a reference to:
- the singular includes the plural and vice versa;
- a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency;
- a thing includes a part of that thing;
- a Party includes its successors and permitted assigns; and
- a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced; and
- a rule of construction does not apply to the disadvantage of a Party because that Party was responsible for the preparation of the Agreement or any part of it.