Qumulex Terms of Service as of October 1, 2019

 

1.0 Acceptance of Terms of Service

The following terms and conditions will be legally binding on the Customer (“Customer”) upon execution of the agreement (the “Agreement”) for a subscription to the Service. Read the terms and conditions of this Agreement carefully before using the Service. Qumulex, Inc. (hereinafter, “Qumulex”) is willing to provide Customer, as an authorized user of the Service, access to and use of the Service on the condition that Customer accepts all the terms and conditions of this Agreement. This Agreement is a legal and enforceable contract between Customer and Qumulex. By clicking “I Accept” electronically, or accessing or using the Service, Customer 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, or using the Service on behalf of a corporation, limited liability company, partnership or any other organization, company, government, or legal entity, such as for example his or her employer, then “Customer” shall mean such entity, and 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 CUSTOMER 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   Customer Acknowledgement.  Customer 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 Customer’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, Customer 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 Customer will be subject to the Agreement and these Terms of Service.

2.2   Privacy.  See the current version of Qumulex’s Privacy Policy, which may be found at www.qumulex/privacy-policy/.

2.3   Customer Must Have Internet Access.  A broadband Internet connection is required for proper transmission of the Service. Customer is responsible for procuring and maintaining the network connections that connect the Customer 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 Customer 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   Accuracy of Customer’s Contact Information.  Customer shall provide accurate, current, and complete information on Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.

2.5   Users Passwords, Access, and Notification.  Customer shall authorize access to and assign unique passwords and usernames to the Users of the Service. Customer will be responsible for the confidentiality and use of User’s passwords and usernames. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. Qumulex will act as though any Electronic Communications it receives under Customer’s passwords, username, and/or account number will have been sent by Customer. Customer 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.

2.6   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 Customer 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 Customer of any Third-Party Applications is solely between Customer 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 Customer installs or enables Third-Party Applications for use with the Service, Customer agrees that Qumulex may allow such third-party providers to access Customer Data as required for the interoperation of such Third-Party Applications with the Service, and any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider. Qumulex and the Reseller shall not be responsible for any disclosure, modification or deletion of Customer 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.

2.7   Transmission and Processing of Customer Data; Use of Certain Data.  Customer understands that Customer’s use of the Service may require the processing and transmission of Customer Data by Customer, Qumulex, or the Reseller, or their subcontractors. Qumulex and Reseller are not responsible for any Electronic Communications and/or Customer 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). Customer shall promptly notify Qumulex of a loss or suspected loss or unauthorized access of the Customer Data. Without limiting Customer’s rights and remedies under these Terms of Service, Customer acknowledges that Customer Data and information regarding Customer’s account will be processed by Qumulex and stored and processed using online hosting services selected by Qumulex, such as Amazon Web Services. Customer further acknowledges that certain Qumulex employees require access to Customer Data to perform services on behalf of Customer, and Customer 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 Customers 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 Customer’s name, and all other information which could identify the Customer, from such data.

2.8   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 Customer 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.

2.9   Confidentiality.  For purposes of this Agreement, “Confidential Information” shall include the terms of the Agreement, Customer 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.

2.10   Qumulex Intellectual Property Rights.  Customer 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 Customer 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 Customer’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 Customer, 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”). Customer further agrees not to display or use the Qumulex Marks in any manner without Qumulex express prior written permission.

2.11   Ownership of Customer Data.  As between Qumulex and Customer, Qumulex acknowledges and agrees that the Customer exclusively own all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. Customer grants Qumulex and its Affiliates a worldwide license to host, have hosted, copy, transmit, access, use and display Customer Data as necessary for Qumulex to provide the Service in accordance with this Agreement. Customer acknowledges and agrees that in connection with the Service, Qumulex, as part of its standard service offering, makes backup copies of the Customer Data in Customer’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 Customer Data available through the Services, Customer 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 Customer Data that Customer submits, posts or displays on or through the Services. Customer agrees that such Customer Data will not contain material subject to copyright or other proprietary rights, unless Customer has the necessary permission or is otherwise legally entitled to provide such Customer Data and to grant Qumulex the license described above.

2.12   Restrictions.  Customer is responsible for all activities conducted under its Users’ logins and for its Users’ compliance with this Agreement. Customer’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. Customer 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 Customer 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.

Customer agrees that Qumulex may terminate Customer’s use of the Service in Qumulex’s sole discretion for any violations of the restrictions above, and/or Customer’s breach of its representations and warranties under this Agreement.

 

3.0 Suspension/Termination

3.1   Suspension for Delinquent Account.  Qumulex reserves the right to suspend Customer’s and any Customer 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 Customer a delinquency notice, and at least thirty (30) days have passed since the transmission of the first notice, or (b) for which Customer 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 Customer understands that such suspension would, therefore, include Customer Affiliate sub-accounts. Customer agrees that Qumulex shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section.

3.2   Handling of Customer Data in The Event of Termination.  Customer agrees that following termination of Customer’s account or use of the Service, Qumulex may deactivate Customer’s account and following a reasonable period of not less than thirty (30) days may delete Customer’s account from the Service. During this 30-day period and upon Customer’s request, Qumulex will grant Customer limited access to the Service for the sole purpose of permitting Customer to retrieve Customer Data, provided that Customer has paid in full all good faith undisputed amounts owed to Qumulex. Customer further agrees that Qumulex shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer 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 Customer by either sending an email to the notification email address or posting a notice in Customer’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 Customer. The current version of this Agreement is available to Customer at the Qumulex website. Customer 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 Customer of such amendments. Customer 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, Customer 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 Customer by either sending an email to the notification email address or posting a notice in Customer’s account. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer shall so notify Qumulex via legal@qumulex.com or the Reseller within thirty (30) days after receiving notice of the change. If Customer notifies Qumulex or the Reseller as required, then Customer 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 Customer Data

Customer Data stored with the Service is searchable and accessible for the Service duration as specified on the Customer 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 Customer Order Form. Customer represents and warrants that the collection and processing of Customer 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 CUSTOMER 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 CUSTOMER PAID QUMULEX, WHICHEVER IS LESS.

 

8.0 Indemnification

By using the Service, Customer agrees that, to the extent permitted by law, Customer 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 Customer's use of the Service, any violation of this Agreement by Customer or any User, or any Customer 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 Customer 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 Customer 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. Customer acknowledges that in entering into this Agreement, Customer 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

Customer may not assign or transfer this Agreement or any of Customer's rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Qumulex, except that Customer may assign this Agreement in its entirety to Customer successor in the event of a merger, corporate reorganization or a sale of all or substantially all of Customer assets so long as such successor is not a competitor of Qumulex. Any attempt by Customer 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 Customer Lawful Conduct

The Service allows Customer to send Electronic Communications directly to Qumulex and to third parties. Customer 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.

Customer represents and warrants to Qumulex that Customer 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 Customer learns of any violation of the above restriction, Customer 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. Customer 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. Customer 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.

 

15.0 Notices

Qumulex may provide any notice to Customer 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 Customer 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 Customer responsibility to keep Customer account contact email address current. Customer will be deemed to have received any email sent to the email address then associated with Customer account when Qumulex sends the email, whether or not Customer actually receives it.

Notices provided to Qumulex by Customer 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 Customer Service.

 

16.0 Definitions

“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer.

“Customer” means the end user customer using the service that was sold and installed by Reseller, as identified on the Order Form, and includes any Customer’s Affiliate(s).

“Customer Data” means all electronic data or information submitted to the Service by Customer or its Affiliates.

“De-Identified Data” means statistical, system, usage, and configuration data regarding the Customer’s compliance with this Agreement and Customer 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 customers.

“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 Customer or a Customer 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 Customers. 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 Customer.

“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 Customer 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 Customer 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 Customer to use the Service, for whom subscriptions to a Service has been purchased, and who have been supplied user identifications and passwords by Customer (or by Qumulex at Customer’s request) or Reseller. Users may include but are not limited to Customer and Customer’s Affiliates’ employees, consultants, contractors, and agents.