Terms of Service & End-User License Agreement
Qumulex Terms of Service & End-User License Agreement, effective as of August 25, 2020
1.0 Acceptance of Terms of Service
The following terms and conditions will be legally binding on the User (“User”) of the Service upon execution of the agreement (the “Agreement”). Read the terms and conditions of this Agreement carefully before using the Service. Qumulex, Inc. (hereinafter, “Qumulex”) is willing to provide the User, as an authorized user of the Service, access to and use of the Service on the condition that User accepts all the terms and conditions of this Agreement. This Agreement is a legal and enforceable contract between User and Qumulex. By clicking “I Accept” electronically, or accessing or using the Service, User affirms it has read, understands and agrees to be bound by the terms and conditions of this Agreement.
IF THE USER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK “I DO NOT ACCEPT” OR “CANCEL” OR OTHERWISE INDICATE REFUSAL, AND DO NOT ACCESS OR USE (OR CONTINUE TO ACCESS OR USE) THE SERVICE.
2.0 Terms of Service
2.1 User Acknowledgement. User acknowledges and agrees to the terms and conditions set forth in this Section 2.0, which together with the other terms of the Agreement, shall govern User’s access and use of the Service. Capitalized terms not otherwise defined in the Agreement or herein shall have the meaning given to them in Section 16 (Definitions) below. In addition, User agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the User will be subject to the Agreement and these Terms of Service.
2.3 User Must Have Internet Access. A broadband Internet connection is required for proper transmission of the Service. User is responsible for procuring and maintaining the network connections that connect the User network to the Service. Qumulex is not responsible for any compromise of data or information transmitted across computer networks or telecommunications facilities (including but not limited to the Internet). Qumulex assumes no responsibility for the reliability or performance of any networks. Furthermore, Qumulex is not responsible for notifying User of any upgrades, fixes or enhancements to any software or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by Qumulex.
2.4 Users Passwords, Access, and Notification. User shall authorize access to and assign unique passwords and usernames to the Users of the Service. User will be responsible for the confidentiality and use of User’s passwords and usernames. User will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, User Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under User’s account. Qumulex will act as though any Electronic Communications it receives under User’s passwords, username, and/or account number will have been sent by User. User shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and shall promptly notify Qumulex of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers.
2.5 Third Party Web Sites, Products and Services. Qumulex or the Reseller may offer certain Third-Party Applications from third parties for sale under Order Forms or as links or integrations to the Service. Any purchase and use of such Third-Party Applications by User shall be subject to the terms specified by such third parties in connection with such Third-Party Applications. Qumulex and the Reseller do not provide any warranties with respect to any such Third-Party Applications. Any purchase by User of any Third-Party Applications is solely between User and the applicable third-party provider. Qumulex is not responsible for the availability or the quality, accuracy, integrity, fitness, safety, reliability, legality, or any other aspect of such Third-Party Applications or any descriptions, promises or other information related to the foregoing. If User installs or enables Third-Party Applications for use with the Service, User agrees that Qumulex may allow such third-party providers to access User Data as required for the interoperation of such Third-Party Applications with the Service, and any exchange of data or other interaction between User and a third-party provider is solely between User and such third-party provider. Qumulex and the Reseller shall not be responsible for any disclosure, modification or deletion of User Data resulting from any such access by Third Party Applications or third-party providers. No purchase of such Third-Party Applications or services is required to use the Service.
2.6 Transmission and Processing of User Data; Use of Certain Data. User understands that User’s use of the Service may require the processing and transmission of User Data by User, Qumulex, or the Reseller, or their subcontractors. Qumulex and Reseller are not responsible for any Electronic Communications and/or User Data which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third-party networks (other than third parties providing computing or storage services under these Terms of Service on behalf of Qumulex or the Reseller). User shall promptly notify Qumulex of a loss or suspected loss or unauthorized access of the User Data. Without limiting User’s rights and remedies under these Terms of Service, User acknowledges that User Data and information regarding User’s account will be processed by Qumulex and stored and processed using online hosting services selected by Qumulex, such as Amazon Web Services. User further acknowledges that certain Qumulex employees require access to User Data to perform services on behalf of User, and User approves this limited access. Qumulex and the Reseller, as applicable, may access, use, aggregate, and disclose De-Identified Data alone or with that of other Users or Users of the Service, as well as other non-personal data generated by the operation of the Service in connection with improving the Service, establishing benchmarks, and other uses which are not prohibited by law, provided that in no event may Qumulex or the Reseller publish or disclose such data to third parties without removing User’s name, and all other information which could identify the User, from such data.
2.7 Support Service. During the Term, Qumulex will provide the support services as further specified in the Support Service posted at www.qumulex.com/support or such other URL as specified by Qumulex (as updated from time to time), which is incorporated herein by reference. Qumulex will use commercially reasonable efforts to: (i) maintain the security and integrity of the Service and the User Data and (ii) make the Service available 24 hours a day, 7 days a week, except for: (a) Scheduled Maintenance and (b) Excused Downtime. Qumulex will use commercially reasonable efforts to provide at least 8 hours’ notice of Scheduled Maintenance, which notice may be provided through the Service.
2.8 Confidentiality. For purposes of this Agreement, “Confidential Information” shall include the terms of the Agreement, User Data, each party’s proprietary technology, intellectual property, trade secrets, business processes and product information, designs and issues and any information (whether or not reduced to writing or designated as confidential). Confidential Information shall not include: (a) information which is known publicly; (b) information which is generally known in the industry before disclosure; (c) information which has become known publicly, without fault of the receiving party, subsequent to disclosure by the disclosing party; (d) information which the receiving party receives from a third party without a duty of confidentiality, where such third party had the lawful right to disclose such information to the receiving party; or (e) Confidential Information of Qumulex. De-Identified Data. Each receiving party agrees (a) to keep confidential all Confidential Information, (b) not to use or disclose Confidential Information, except to the extent necessary to perform its obligations or exercise its rights under the Agreement or these Terms of Service or as directed by the disclosing party, (c) to protect the confidentiality thereof in the same manner as 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), and (d) to only make Confidential Information available to authorized persons of the receiving party on a “need to know” basis. Receiving party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written Agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of the Agreement or these Terms of Service. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
2.9 Qumulex Intellectual Property Rights. User agrees that all rights, title, and interest in and to all intellectual property rights in the Service are owned exclusively by Qumulex or its licensors. Except as provided in the Agreement, the license granted to User does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, Qumulex shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license (except for Qumulex or the Reseller’s right to terminate User’s subscription to the Service in accordance with the Agreement) to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by User, including Users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by Qumulex. Qumulex service marks, logos, and product and service names are marks of Qumulex (the “Qumulex Marks”). User further agrees not to display or use the Qumulex Marks in any manner without Qumulex express prior written permission.
2.10 Ownership of User Data. As between Qumulex and User, Qumulex acknowledges and agrees that the User exclusively own all rights, title and interest in and to all User Data. User Data is deemed Confidential Information under this Agreement. User grants Qumulex and its Affiliates a worldwide license to host, have hosted, copy, transmit, access, use and display User Data as necessary for Qumulex to provide the Service in accordance with this Agreement. User acknowledges and agrees that in connection with the Service, Qumulex, as part of its standard service offering, makes backup copies of the User Data in User’s account and stores and maintains such data for a period of time consistent with Qumulex standard business processes.
By submitting, posting, transmitting or otherwise making User Data available through the Services, User represents and warrants that it had, or has obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any User Data that User submits, posts or displays on or through the Services. User agrees that such User Data will not contain material subject to copyright or other proprietary rights, unless User has the necessary permission or is otherwise legally entitled to provide such User Data and to grant Qumulex the license described above.
2.11 Restrictions. User is responsible for all activities conducted under its Users’ logins and for its Users’ compliance with this Agreement. User’s use of the Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the Service. User shall not and shall not permit any third party to (a) copy, translate, create derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form, (b) use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service, (c) use the Service in a manner that is contrary to applicable law or in violation of any third party rights or privacy or intellectual property rights, (d) publish, post, upload or otherwise transmit User Data that contains any virus, Trojan horses, worms, timebombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another, or (e) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Service.
User agrees that Qumulex may terminate User’s use of the Service in Qumulex’s sole discretion for any violations of the restrictions above, and/or User’s breach of its representations and warranties under this Agreement.
3.1 Suspension for Delinquent Account. Qumulex reserves the right to suspend User’s and any User Affiliates’ access to and/or use of the Service for any accounts (a) for which any payment is due but unpaid but only after Qumulex or the Reseller (as the case may be) has provided User a delinquency notice, and at least thirty (30) days have passed since the transmission of the first notice, or (b) for which User has not paid for the Renewal Term and has not notified Qumulex or the Reseller of its desire to renew the Service by the expiration of the then-current Term. The suspension is for the entire account and User understands that such suspension would, therefore, include User Affiliate sub-accounts. User agrees that Qumulex shall not be liable to User or to any User Affiliate or other third party for any suspension of the Service pursuant to this Section.
3.2 Handling of User Data in The Event of Termination. User agrees that following termination of User’s account or use of the Service, Qumulex may deactivate User’s account and following a reasonable period of not less than thirty (30) days may delete User’s account from the Service. During this 30-day period and upon User’s request, Qumulex will grant User limited access to the Service for the sole purpose of permitting User to retrieve User Data, provided that User has paid in full all good faith undisputed amounts owed to Qumulex. User further agrees that Qumulex shall not be liable to User nor to any third party for any termination of User access to the Service or deletion of User Data, provided that Qumulex is in compliance with the terms of this Section.
4.0 Modification; Discontinuation of Service
4.1 Change or Discontinuation the Service. Qumulex reserves the right to change or discontinue the Service or change or remove features or functionality of the Service from time to time. Qumulex will notify User by either sending an email to the notification email address or posting a notice in User’s account of any material change to or discontinuation of the Service. This Agreement may be amended from time to time by Qumulex upon written notice to User. The current version of this Agreement is available to User at the Qumulex website. User acknowledges and agrees that the posting of amendments to this Agreement at such website, via the Service or by email message will constitute written notice to User of such amendments. User shall be responsible for checking the Service for any updates to this Agreement. By continuing to use the Service after the effective date of any amendments to this Agreement, User agrees to be bound by the amended terms. Qumulex will have no liability under this Agreement to the extent that it is delayed, prevented or hindered in performing any of its obligations under this Agreement as a result of a Force Majeure Event.
4.2 Changes to the Agreement. If Qumulex makes a material change to this Agreement, then Qumulex will notify User by either sending an email to the notification email address or posting a notice in User’s account. If the change has a material adverse impact on User and User does not agree to the change, User shall so notify Qumulex via firstname.lastname@example.org or the Reseller within thirty (30) days after receiving notice of the change. If User notifies Qumulex or the Reseller as required, then User will remain governed by the version of the Agreement in effect immediately prior to the change until the end of the then-current Term for the affected Service. If the affected Service is renewed, it will be renewed under Qumulex’s then-current Agreement.
5.0 Access to User Data
User Data stored with the Service is searchable and accessible for the Service duration as specified on the User Order Form. Data stored with the Service within a terminated Service account (subject to Section 3.2 above) is subject to permanent deletion. Data stored in the Service will be retained for the periods described in this Section unless a longer or shorter retention period is required by applicable law.
6.0 Screening for Viruses and Malicious Code
Qumulex will use commercially reasonable measures, including generally accepted virus screening software, to protect the Service and its systems or software used from viruses and other malicious code. In the event that any viruses and other malicious code are discovered, Qumulex will use commercially reasonable measures to eliminate such viruses and other malicious code pursuant to the provisions of this Agreement relating to support.
7.0 Limited Warranties and Disclaimers
Qumulex warrants that: (a) the Service will perform substantially in accordance with the Documentation; and (b) the functionality of the Service will not be materially decreased during the Service duration as specified on the User Order Form. User represents and warrants that the collection and processing of User Data as contemplated by this Agreement complies in all respects with applicable data protection laws and regulations.
7.1 Disclaimer of Warranties. THE ABOVE LIMITED WARRANTIES ARE THE ONLY WARRANTIES PROVIDED BY QUMULEX REGARDING THE SERVICE. EXCEPT FOR THE LIMITED WARRANTIES ABOVE, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, QUMULEX SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (A) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, APPROPRIATENESS, RELIABILITY, TIMELINESS OR USEFULNESS OF THE SERVICE AND THE CONTENT THEREIN; AND (B) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QUMULEX CANNOT AND DOES NOT REPRESENT OR WARRANT OR GUARANTEE THAT THIS SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
QUMULEX DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS USING THE SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF THE SERVICES BY OTHER USERS. THEREFORE, QUMULEX DECLINES ALL LIABILITY FOR INACCURATE INFORMATION, FRAUD, NEGLIGENCE, WILLFUL MISCONDUCT, OR ANY OTHER INAPPROPRIATE USE OF THE SERVICES.
7.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL QUMULEX, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SUCCESSORS OR ASSIGNS, BE LIABLE TO USER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, DIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PROPERTY DAMAGE, THEFT, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SERVICE, EVEN IF QUMULEX OR ITS AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF QUMULEX, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) ARISING OUT OF OR RELATED TO THE USE OF THIS SERVICE EXCEED $100.00 OR THE COMPENSATION USER PAID QUMULEX, WHICHEVER IS LESS.
By using the Service, User agrees that, to the extent permitted by law, User will defend, indemnify and hold Qumulex, its Affiliates, officers, directors and employees harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from User's use of the Service, any violation of this Agreement by User or any User, or any User Data transmitted on or through the Service.
9.0 Laws of the State of Indiana
This Agreement will be governed by and construed in accordance with the laws of the State of Indiana, United States of America. THE PARTIES AGREE THAT THE UNIFORM COMPUTER TRANSACTIONS INFORMATION ACT OR ANY VERSION THEREOF, ADOPTED BY ANY STATE, IN ANY FORM (“UCITA”), WILL NOT APPLY TO THIS AGREEMENT. TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES AGREE TO OPT OUT OF THE APPLICABILITY OF UCITA PURSUANT TO THE OPT-OUT PROVISION(S) CONTAINED THEREIN. Any suit, action or proceeding arising in connection with this Agreement will be brought in the state or federal courts sitting in Marion County, Indiana, USA, and User hereby expressly submit to the exclusive jurisdiction of and venue in such courts for the purpose of any such suit, action, or proceeding.
10.0 Entire Agreement
This Agreement is the entire Agreement between User and Qumulex relating to the Service and: (a) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter and (b) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communications between the parties. User acknowledges that in entering into this Agreement, User has not relied on any representations or warranties other than as expressly set forth in this Agreement. Certain other products and services offered by Qumulex are subject to separate terms and conditions established from time to time by Qumulex. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement will continue in full force and effect. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.0 Assignment or Transfer of Agreement
User may not assign or transfer this Agreement or any of User's rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Qumulex, except that User may assign this Agreement in its entirety to User successor in the event of a merger, corporate reorganization or a sale of all or substantially all of User assets so long as such successor is not a competitor of Qumulex. Any attempt by User to assign this Agreement or any of its rights or obligations hereunder in violation of this Section shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
12.0 Service for Federal Government
Qumulex provides the Service for the federal government end use in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and the Department of Defense, DFAR 252.227-7015 (Technical Data; Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
13.0 User Lawful Conduct
The Service allows User to send Electronic Communications directly to Qumulex and to third parties. User shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation.
User represents and warrants to Qumulex that User has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Qumulex’s employees or agents in connection with this Agreement. If User learns of any violation of the above restriction, User will use reasonable efforts to promptly notify Qumulex in writing.
14.0 Export Laws and Regulations
The Service may be subject to export laws and regulations of the United States and other jurisdictions. User shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. User shall not permit Users to access or use the Service in a U.S. embargoed country or in violation of any U.S. export law or regulation.
Qumulex may provide any notice to User under this Agreement by posting a notice to the Qumulex website or otherwise within the Service or by sending a message to the email address then associated with User account. Notice provided by posting to the Qumulex website or within the Service will be effective upon posting and notices provided by email will be effective when Qumulex sends the email. It is User responsibility to keep User account contact email address current. User will be deemed to have received any email sent to the email address then associated with User account when Qumulex sends the email, whether or not User actually receives it.
Notices provided to Qumulex by User under this Agreement must be sent by personal delivery, overnight courier or registered or certified mail to Qumulex, Inc., 9059 Technology Ln, Fishers, IN 46038 USA, attention User Service.
“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with User, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of User.
“User” means the end user using the service that was sold and installed by Reseller, as identified on the Order Form, and includes any User's Affiliate(s).
“User Data” means all electronic data or information submitted to the Service by User or its Affiliates.
“De-Identified Data” means statistical, system, usage, and configuration data regarding the User’s compliance with this Agreement and User usage of the Services, or information that does not identify any natural person.
“Documentation” means the instructions, specifications, and guides regarding the use of the Service the Qumulex provides to its Users.
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
“Excused Downtime” means any period of unavailability or inoperability caused by a Force Majeure Event.
“Force Majeure Event” means any circumstance or occurrence beyond the reasonable control of Qumulex, including, without limitation, acts or omissions by a public authority, acts of God, strikes, blockades, acts of terrorism, riots, storms, earthquakes, explosions, fires, floods, Internet or telecommunications failures/outages/delays, third-party hosting facility failures, denial of service attacks, or other similar occurrences.
“Qumulex” means Qumulex Inc., an Indiana corporation, with its principal place of business located at 9059 Technology Ln, Fishers, Indiana 46038.
“Order Form” means a Qumulex renewal notification, purchase order or order form from the Reseller on behalf of the User or a User Affiliate and accepted by Qumulex which specifies the Products, Service, Duration and Activation Date to be provided by Qumulex subject to the terms of the Agreement.
“Reseller” means the authorized Qumulex reseller that places orders and purchases Services to be resold to Users. Reseller has been authorized to resell Services under the terms and conditions of a Qumulex Reseller Agreement. Reseller resells, installs, configures and enables the Service to operate for the User.
“Scheduled Maintenance” means any period during which the Service is unavailable for maintenance, including the implementation of any updates, enhancements, patches, fixes, or error corrections.
“Service” means Qumulex’s online access control and video services and solutions as described in marketing materials or other documentation and that is purchased by User from Qumulex or a Reseller in an Order Form from time to time, including associated offline components, but excluding Third Party Applications. The “Service” may also be referenced as the “Subscription Service” from time to time.
“Subscription Fees” means the fees paid by User for the Service as provided on an Order Form.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, and interoperate with the Service.
“Users” means individuals who are authorized by User to use the Service, for whom subscriptions to a Service has been purchased, and who have been supplied user identifications and passwords by User (or by Qumulex at User's request) or Reseller. Users may include but are not limited to User and User’s Affiliates’ employees, consultants, contractors, and agents.
Qumulex End-User License Agreement
1.0 ACCEPTANCE OF END USER LICENSE AGREEMENT
1.1 This End User License Agreement (the “EULA”) between Qumulex, Inc. (“Qumulex”), as licensor of the Software (as defined below), and you (being the person or other legal entity that is the end user and licensee of the Software) (“You” or “Your”) governs Your use of the Software. The term “Software” means: (a) the software accompanying, or being used in association with, this EULA, including computer software and any modified versions and copies of, and upgrades, updates, and additions to, such software; and (b) any media, printed materials, and “on-line” or electronic documentation with respect to such software (the “Documentation”).
1.2 The following terms and conditions will be legally binding on You upon execution of the You Agreement for the Software. Qumulex is willing to provide You, as an authorized user of the Software, access to and use of the Software on the condition that You accept all the terms of this Agreement. This Agreement is a legal and enforceable contract between You and Qumulex. By clicking “I Accept” electronically, or accessing or using the Software, You affirms it has read, understands and agrees to be bound by the terms and conditions of this Agreement. If the individual who clicks “I Accept” is accepting and agreeing to the terms and conditions of this Agreement on behalf of a Corporation, Limited Liability Company, Partnership or other legal entity, such as for example his or her employer, such individual represents and warrants to Qumulex that he or she is authorized to enter into this Agreement and accept these terms on behalf of such entity. If You do not agree to all of the terms and conditions of this Agreement, click “I Do Not Accept” or “Cancel” or otherwise indicate refusal, and do not use the Software.
1.3 The Software may include computer code, program files and any associated media, hardware or software keys, printed material and electronic documentation. The Software may be provided to you pre-installed on a storage device (the media), as part of a computer system, via online access (i.e., hosted software) or other hardware or device ('System'). The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All title and intellectual property rights in and to the Software (including but not limited to any images, photographs, and text incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by Qumulex and/or its suppliers. The Software is licensed, not sold. All rights not expressly granted under this EULA are reserved by Qumulex and its suppliers.
2.0 GRANT OF LICENSE.
2.1 This EULA grants you the following rights on a non-exclusive basis:
2.2 General. This EULA permits you to use the Software for which you have purchased this EULA. Once you have purchased licenses for the number of copies of the Software that you require, you may use the Software and accompanying material provided that you install or access and use no more than the licensed number of copies at one time. The Software is only licensed for use with specified Licensor-supplied Systems. If the Software is protected by a software or hardware key or other device, the Software may be used on any computer on which the key is installed. If the key locks the Software to a particular System, the Software may only be used on that System.
2.3 Locally Stored Components. The Software may include a software code component that may be stored and operated locally on one or more devices. Once you have paid the required license fees for these devices (as determined by Qumulex in its sole discretion), you may install and/or use one copy of such component of the Software on each of the devices as licensed by Qumulex. You may then use, access, display, run or otherwise interact with ('use') such component of the Software in connection with operating the device on which it is installed solely in the manner set forth in any accompanying documentation or, in the absence of such, solely in the manner contemplated by the nature of the Software.
2.4 Remotely Stored Components. The Software may also include a software code component for operating one or more devices remotely. You may install and/or use one copy of such component of the Software on a remote storage device on an internal network with all of the devices and may operate such component with each device over the internal network solely in the manner set forth in any accompanying documentation or, in the absence of such, solely in the manner contemplated by the nature of the Software; provided however, you must still acquire the required number of licenses for each of the devices with which such component is to be operated.
2.5 Embedded Software/Firmware. The Software may also include a software code component that is resident in a device as provided by Qumulex for operating that device. You may use such component of the Software solely in connection with the use of that device, but may not retrieve, copy or otherwise transfer that software component to any other media or device without Qumulex's express prior written authorization.
2.6 Hosted Software. The Software may also include a software code component that is resident in a hosted environment with access provided by Qumulex via the internet ('Hosted Software'). You may use and access such component of the Software solely via the URL provided by Qumulex, but may not retrieve, copy or otherwise transfer that software component to any other media or device without Qumulex's express prior written authorization.
2.7 Backup Copy. Except with respect to Hosted Software, You may make a back-up copy of the Software (other than embedded software) solely for archival purposes, which copy may only be used to replace a component of the Software for which you have current valid license. Except as expressly provided in this EULA, you may not otherwise make copies of the Software, including the printed materials.
3.0 OTHER RIGHTS AND LIMITATIONS
3.1 Your use of the Software is subject to the following additional limitations. Failure to comply with any of these restrictions will result in automatic termination of this EULA and will make available to Qumulex other legal remedies.
3.2 Limitations on Reverse Engineering and Derivative Works. You may not reverse engineer, decompile, or disassemble the Software, and any attempt to do so shall immediately terminate this EULA - except and only to the extent that such activity may be expressly permitted by applicable law notwithstanding this limitation. You may not make any changes or modifications to any portion of the Software, or create any derivative works, without the written permission of an officer of Qumulex (except as provided in Section 3(f) of this EULA with respect to 'open source' software). You may not remove any proprietary notices, marks or labels from the Software. You shall institute reasonable measures to ensure compliance with the terms and conditions of this EULA by your personnel and agents.
3.3 Copyright Notices. You must maintain all copyright notices on all copies of the Software.
3.4 Transfer. You may only transfer your rights under this EULA (i) as part of a permanent sale or transfer of all of the devices for which the Software is licensed as applicable; (ii) if you transfer all of the Software (including all component parts, the media and printed materials, any upgrades and this EULA); (iii) if you do not retain any copies of any portion of the Software; (iv) if the recipient agrees to the terms of this EULA; and (v) if the Software is an upgrade, such transfer must also include all prior versions of the Software. You agree that failure to meet all of these conditions renders such transfer null and void.
3.5 Termination. Without prejudice to any other rights, Qumulex may terminate this EULA if you fail to comply with the terms and conditions herein. In such event, you must immediately destroy all copies of the Software and all of its component parts. To the extent the Software is embedded in hardware or firmware, you will provide prompt access to Qumulex or its representative to remove or lock Software features or functionality as Qumulex determines.
3.6 Subsequent EULA. Qumulex may also supersede this EULA with a subsequent EULA pursuant to providing you with any future component, release, upgrade or other modification or addition to the Software. Similarly, to the extent that the terms of this EULA conflict with any prior EULA or other agreement between you and Qumulex regarding the Software, the terms of this EULA shall prevail.
3.7 Incorporation of 'Open Source' and other Third-Party Software. Portions of the Software may be subject to certain thirty party license agreements governing the use, copying, modification, redistribution and warranty of those portions of the Software, including what is commonly known as 'open source' software. No warranty is provided for open source software. By using the Software you are also agreeing to be bound to the terms of such third party licenses. If provided for in the applicable third party license, you may have a right to receive source code for such software for use and distribution in any program that you create, so long as you in turn agree to be bound to the terms of the applicable third party license, and your programs are distributed under the terms of that license. If applicable, a copy of such source code may be obtained free of charge by contacting your Qumulex representative.
3.8 Trademarks. This EULA does not grant you any rights in connection with any trademarks or service marks of Qumulex, its affiliates or its suppliers.
3.9 Rental. You may not sublicense, rent, lease or lend the Software. You may not make it available to others or post it on a server or web site or otherwise distribute it.
3.10 Software Keys. The hardware/software key, where applicable, is your proof of license to exercise the rights granted herein and must be retained by you. Lost or stolen keys will not be replaced.
3.11 Demonstration and Evaluation Copies. A demonstration or evaluation copy of the Software is covered by this EULA; provided that the licenses contained herein shall expire at the end of the demonstration or evaluation period.
3.12 Registration of Software. The Software may require registration with Qumulex prior to use. If you do not register the Software, this EULA is automatically terminated and you may not use the Software.
3.13 Additional Restrictions. The Software may be subject to additional restrictions and conditions on use as specified in the documentation accompanying such Software, which additional restrictions and conditions are hereby incorporated into and made a part of this EULA.
3.14 Upgrades and Updates. To the extent Qumulex makes them available, Software upgrades and updates may only be used to replace all or part of the original Software that you are licensed to use. Software upgrades and updates do not increase the number of copies licensed to you. If the Software is an upgrade of a component of a package of Software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer or System. Software upgrades and updates downloaded free of charge via a Qumulex authorized World Wide Web or FTP site may be used to upgrade multiple Systems provided that you are licensed to use the original Software on those Systems.
3.15 Tools and Utilities. Software distributed via a Qumulex-authorized World Wide Web or FTP site (or similar Qumulex-authorized distribution means) as a tool or utility may be copied and installed without limitation provided that the Software is not distributed or sold and the Software is only used for the intended purpose of the tool or utility and in conjunction with Qumulex products. All other terms and conditions of this EULA continue to apply.
3.16 License by You to Host Your Data. With respect to Hosted Software, You grants Qumulex, its affiliates and its hosting providers a worldwide, limited-term license to host, copy, transmit and display Your Data (as defined below), as necessary for Qumulex to provide the Software in accordance with this EULA. Subject to the limited licenses granted herein, Qumulex acquires no right, title or interest from You or Your licensors under this EULA in or to any Your Data. You acknowledge and agree that Your Data may be hosted and stored by a third-party hosting provider selected, or to be selected by Qumulex. 'Your Data' means electronic data and information submitted by or for you to the Software.
3.17 Protection of Your Data. Qumulex shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of your Data by Qumulex personnel (including its employees and contractors) except (a) to provide the services provided by the Software and prevent or address service or technical problems, (b) as compelled by law, or (c) as expressly permitted in writing by you.
4.0 EXPORT RESTRICTIONS
You agree that you will not export, re-export or transfer any portion of the Software, or any direct product thereof (the foregoing collectively referred to as the 'Restricted Components'), to IRAN, NORTH KOREA, SYRIA, CUBA and SUDAN, including any entities or persons in those countries, either directly or indirectly ('Qumulex's Position'). You also agree that you will not export, re-export or transfer the Restricted Components to any other countries except in full compliance with all applicable governmental requirements, including but not limited to applicable economic sanctions and constraints administered by the U.S. Treasury Department and applicable export control measures administered by the U.S. Department of Commerce and U.S. Department of State, any other U.S. government agencies, and measures administered by the European Union or the government agencies of any other countries. Any violation by you of the applicable laws or regulations of the U.S. or any other government, or where you breach Qumulex's Position notwithstanding whether or not this is contrary to any aforementioned applicable laws or regulations, will result in automatic termination of this EULA.
5.0 U.S. GOVERNMENT RESTRICTED RIGHTS
If the end user is the government of the United States of America or any contractor therefor, the following provision shall apply: The Software is provided to the U.S. government as commercial computer software, computer software documentation, or computer software and computer software documentation, provided with “restricted rights”, and under licenses customarily provided to the public to the extent such licenses are consistent with U.S. federal law and otherwise satisfy the U.S. government’s needs. Accordingly, the U.S. government shall have Page 4 of 7 only those rights specified in the license set forth in this Agreement as per FAR 12.212 (for civilian agencies) and DFAR 227.7202-1 and 227.7202-4 (for the Department of Defense). If said license fails to meet the U.S. government’s needs or is inconsistent in any respect with U.S. federal law, the U.S. government agrees to return the Software, unused, to Qumulex, 9059 Technology Ln, Fishers, IN 46038.
6.0 LIMITED WARRANTY
6.1 Warranty. Qumulex warrants that the recording medium on which the Software is recorded, hardware key, and the documentation provided with it, will be free of defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery of the original Software licensed hereunder to the first user. Qumulex further warrants that for the same period, the Software provided on the recording medium under this license will substantially perform as described in the user documentation provided with the product when used with specified hardware. THE FOREGOING EXPRESS WARRANTY REPLACES AND IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. QUMULEX MAKES NO WARRANTY THAT ANY PORTION OF THE SOFTWARE WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY DEFECTS OR IN AN UNINTERRUPTED MANNER. QUMULEX SHALL NOT BE RESPONSIBLE FOR PROBLEMS CAUSED BY CHANGES IN THE OPERATING CHARACTERISTICS OF THE DEVICE(S) UPON WHICH THE SOFTWARE IS OPERATING, OR FOR PROBLEMS IN THE INTERACTION OF THE SOFTWARE WITH NON-QUMULEX SOFTWARE OR HARDWARE PRODUCTS. QUMULEX NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON PURPORTING TO ACT ON ITS BEHALF TO MODIFY OR TO CHANGE THIS WARRANTY, NOR TO ASSUME FOR IT ANY OTHER WARRANTY OR LIABILITY CONCERNING THIS SOFTWARE. THE WARRANTY MADE BY QUMULEX MAY BE VOIDED BY ABUSE OR MISUSE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS UNDER MANDATORY LAW THAT VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
6.2 Exclusive Remedy. Qumulex's entire liability and your exclusive remedy under the warranty set forth in this Section 6 will be, at Qumulex's option, to (i) attempt to correct Software errors with efforts Qumulex believes suitable to the problem, (ii) replace at no cost the recording medium, Software or documentation with functional equivalents as applicable, or (iii) refund a pro-rated portion of the license fee paid for such Software (less depreciation based on a five-year life expectancy) and terminate this EULA, provided, in each case, that Qumulex is notified in writing of all warranty problems during the applicable warranty period. Any replacement item will be warranted for the remainder of the original warranty period. No remedy is provided for failure of the Software if such failure is the result of accident, abuse, alteration or misapplication with respect to the Software or any hardware on which it is loaded. Warranty service or assistance is provided at the original point of purchase.
7.0 LIMITATION OF LIABILITY & EXCLUSION OF DAMAGES
7.1 IN NO EVENT SHALL QUMULEX OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE, COVER OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS; LOSS OF SAVINGS; LOSS OF CONFIDENTIAL OR OTHER INFORMATION; BUSINESS INTERRUPTION; PERSONAL INJURY; LOSS OF PRIVACY; LOSS OR DAMAGE OF OR TO PROPERTY, SYSTEMS, RECORDS, OR DATA; FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE; NEGLIGENCE; AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, THIRD PARTY CLAIMS, LIABILITIES RELATED TO AN INDIVIDUAL’S PRIVACY RIGHT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY OF QUMULEX OR ANY SUPPLIER, AND EVEN IF QUMULEX OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE, AND FOR ANY RELIANCE THEREON.
7.2 NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF QUMULEX AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR, REPLACEMENT OR REFUND ELECTED BY QUMULEX WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR TEN US DOLLARS ($10.00).
7.3 THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
If any provision of this EULA is found to be unlawful, void, or for any reason unenforceable, then that provision shall be severed from this EULA and shall not affect the validity and enforceability of the remaining provisions. You should retain proof of the license fee paid, including model number, serial number and date of payment, and present such proof of payment when seeking service or assistance covered by the warranty set forth in this EULA. This EULA is governed by the laws of the State of Indiana, without regards to its conflicts of law principles. The parties hereby irrevocably agree that they submit themselves to the personal jurisdiction of the state and federal courts of New York for purposes of resolving any and all disputes arising under or related to these terms and conditions. The parties specifically exclude the application of the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
DATA PROTECTION ADDENDUM
This Data Processing Addendum (“DPA”) forms part of that certain User Terms of Service agreement (the “Agreement”) between Qumulex, Inc. (“Qumulex”) and User, for the purchase and use of certain online services identified in the Agreement, and hereinafter defined as “Services.” Qumulex and User may be individually referred to as “Party” or collectively as “Parties” in this DPA.
Capitalized terms used in this DPA are set forth in Section 1 below, and terms that are not otherwise defined herein will have the same meaning ascribed to them as set forth in the Agreement, or under the GDPR.
User enters into this DPA on behalf of itself and, to the extent required under the GDPR, in the name and on behalf of its Affiliates, if and to the extent Qumulex Processes Personal Data for which such Affiliates qualify as the Controller. For the purposes of this DPA only, and except where indicated otherwise, the term "User" shall include User and its Affiliates.
In the course of providing the Services to User pursuant to the Agreement, Qumulex may Process Personal Data on behalf of User and the Parties agree to comply with the following provisions with respect to any Personal Data of Data Subjects in the EEA, each acting reasonably and in good faith.
1. Defined Terms.
a. “Appropriate Safeguards” means technical, physical, and organizational measures, standards, requirements, specifications, or obligations designed to ensure a level of security appropriate to the risks presented by the Processing and the nature of the Personal Data to be protected. For the avoidance of doubt, the meaning of “Appropriate Safeguards” shall be consistent with the “appropriate technical and organizational measures” described in Article 32 of the GDPR.
b. “Controller” means a natural or legal person, which alone or jointly with others, determines the purposes and means of personal data processing, as defined in GDPR Article 4(7). For the purposes of this DPA, the User is the Controller.
c. “Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise Processed. For avoidance of doubt, the meaning of “Data Breach” shall be consistent with the term “personal data breach” as it is defined in Personal Data, as defined in GDPR Article 4(12).
d. “Data Subject” means the individual to whom Personal Data relates.
e. “EEA” means the European Economic Area, which constitutes the member states of the European Union and Norway, Iceland and Liechtenstein, as well as, for the purposes of this DPA, the United Kingdom.
f. “GDPR” refers to Regulation (EU) 2016/679 of the European Parliament and of the Council, and any successor legislation imposing equivalent obligations.
g. “Personal Data” means any information relating to an identified or identifiable natural person (“data subject”), to the extent that such personal data are associated with European Economic Area residents or are otherwise within the scope of the GDPR. For the avoidance of doubt, the meaning of “Personal Data” shall be consistent with the term “personal data” as it is defined in Article 4(1) of the GDPR.
h. “Processing," "Process," or "Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data. For the avoidance of doubt, the meaning of “Processing," "Process," or "Processed” shall be consistent with the term “processing” as it is defined in Article 4(2) of the GDPR.
i. “Processor” means an entity which Processes Personal Data on behalf of the Controller. For the purposes of this DPA, Qumulex is the Processor.
j. “Sub-Processor” means another processor engaged by a Processor for carrying out specific Processing activities on behalf of a Controller, and in accordance with Section 3(d) of this DPA.
k. “Valid Transfer Mechanism” means any data transfer mechanism recognized by the European Commission as a legitimate basis for the transfer of Personal Data outside the European Economic Area.
2. Roles and Responsibilities.
a. The Parties acknowledge and agree that with regard to the Processing of Personal Data, User is the Controller, Qumulex is the Processor and that Qumulex will engage Sub-processors pursuant to the requirements set forth in Section 3(d) below.
b. Qumulex, at all times, shall Process Personal Data for the purposes set forth in the Agreement and only in accordance with the lawful, documented instructions of User, except where otherwise required by applicable law. The Agreement and this DPA set out User’s complete instructions to Qumulex in relation to the Processing of Personal Data and any Processing required outside of the scope of these instructions (inclusive of the rights and obligations set forth under the Agreement) will require prior written agreement of the Parties.
c. User shall ensure that it has complied and will continue to comply with all applicable privacy and data protection laws, including, but not limited to the GDPR, and that it has, and will continue to have, the right to transfer, or provide access to, the Personal Data to Qumulex for Processing in accordance with the terms of the Agreement and this DPA.
3. Additional Obligations.
a. Types of Personal Data. The categories of Personal Data are determined by the User in its sole discretion and may include but are not limited to: first and last name; employer; business role; professional title; contact information (e.g., email, phone, physical address); business network; business experience; business interests; geo-location and localization data, and; device identification data.
b. Special Categories. Special categories of Personal Data, if any, are determined by User in its sole discretion and may include, Biometric Data. User shall be solely responsible for ensuring that any documented instruction to Qumulex for the Processing of such special categories of Personal Data, shall be in accordance with GDPR Article 9.
c. Appropriate Safeguards. In accordance with GDPR Article 28(1), each Party will implement Appropriate Safeguards in such a manner that its Processing will meet the requirements of the GDPR; ensure the ongoing confidentiality, integrity, and availability, and resilience of Processing systems and activities; and ensure the protection of the rights of the Data Subjects.
d. Additional Processors. User acknowledges and agrees that Qumulex may engage Sub-Processors to Process Personal Data to support the delivery of Services. In accordance with GDPR Article 28(4), Qumulex shall enter into a written contract or other legally binding Agreement with such Sub-Processors imposing the same obligations set forth in this DPA, upon such Sub-Processors. At least fourteen (14) days prior to Qumulex engaging any new Sub-Processor(s), Qumulex shall provide notice to User of such change(s), and User shall have fourteen (14) days from such notice to object to such change(s) by providing objective, justifiable grounds related to the ability of such Sub-Processor(s) to adequately protect Personal Data in accordance with this DPA. Qumulex will have the right to cure the objection through any options in its sole discretion.
e. Data Breaches. If Qumulex experiences a Data Breach involving the User and User’s Personal Data, then Qumulex shall notify User of such Data Breach without undue delay after Qumulex first becomes aware of the Data Breach. When feasible, Qumulex agrees to take all reasonably necessary steps to eliminate or contain the exposures that led to such Data Breach.
f. Data Subjects’ Rights. To the extent reasonably practicable, Qumulex shall implement the necessary technical and organizational measures to facilitate a Party’s fulfillment of its obligations related to the exercise of the Data Subjects’ rights as described in GDPR Articles 15–20.
g. Record Retention. Qumulex shall maintain all records related to its Processing activities performed on behalf of User in accordance with GDPR Article 30(2).
h. Evaluations. In accordance with GDPR Article 32(1)(d), Qumulex shall regularly evaluate, test, and assess the effectiveness of the Appropriate Safeguards for ensuring the security of the Processing. Qumulex shall promptly adjust and/or update the Appropriate Safeguards as reasonably warranted by the results of such evaluation, testing, and monitoring.
i. Facilitating a Party’s GDPR Compliance. To the extent reasonably practicable, Qumulex shall assist User in complying with its obligations related to Data Breaches, as described in GDPR Articles 33–34; data protection impact assessments, as described in GDPR Article 35; and required prior consultations with the supervisory authority regarding potential Processing, as described in GDPR Article 36.
j. International Data Transfers. In accordance with GDPR Article 44, the Parties shall rely on a Valid Transfer Mechanism to transfer Personal Data for Processing (whether performed by Qumulex or User) from the European Economic Area to a third country.
4. Precedence. This DPA incorporates by reference all of the other terms and conditions of the Agreement which shall remain in effect. However, as agreed to herein, this DPA modifies such terms and conditions to account for the protection of Personal Data. Accordingly, the Parties hereby agree that to the extent the terms of this DPA and the Agreement conflict with one another, the terms and conditions of this DPA shall control.