qBotica, Inc Terms of Service
1. Acceptance
By accessing, browsing, downloading and using qBotica websites or using our products or services, you acknowledge that you have read, understood and accepted the following Terms of Service. qBotica reserves the right to make changes to these terms, the right to change, add, and delete the content of qBotica websites without any notice, without any notice to the users. You are requested to review this section during your future visits to access the latest version of the terms. For example, we may add or remove functionality or features, and we may suspend or stop a particular feature altogether. We also reserve the right to charge a fee for any of our features at any time. If you don’t like any changes, you can stop using our Sites at any time. These Terms govern your use of the websites that link to these Terms. In these Terms, the word “Sites” refers to each of these websites and the products or services offered on those Sites. You automatically agree to these Terms and to our Privacy Policy simply by using or logging into the Sites.
2. Access to Platform
2.1 Subject to the receipt of the relevant Platform access fees, qBotica will provide access to the Platform from the Start Date during the Term. The Customer may only access the Platform for its own business purposes.
2.2 The Customer shall comply with these Terms of Service, any Terms of Service or service (including the Acceptable Use Policy and privacy policy and/or cookies policy that qBotica may provide to Customer or publish online on its Website, all of which are incorporated into these Terms of Service by reference.
2.3 qBotica shall provide Platform Access Ways, through which the Customer can access the Platform. qBotica grants the Customer a non-exclusive right to use the Platform Access Ways for the purposes of accessing the Platform and integrating it into the Customer’s automation workflows via API calls during the Term .
2.4 qBotica shall provide Customer access to Platform with reasonable skill and care and will comply with applicable laws and regulations with respect to its activities under these Terms of Service.
2.5 qBotica agrees to provide any additional services to Customer these will be set out in a separate mutual agreement.
2.6 The Customer is responsible for determining if the access to Platform meet its needs, expectations and requirements. qBotica:
(a) does not warrant that the Customer’s use of or access to the Platform will be uninterrupted or error-free;
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the access to the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
(c) makes no warranties or other assurances as to the fitness for purpose of the Platform or any qBotica Content.
2.7 All other conditions, warranties or other terms which might be implied or incorporated into these Terms of Service are excluded to the fullest extent permitted by law, including any implied conditions, warranties or other terms as to the satisfactory quality and fitness for purpose.
3. Content You Post
3.1 We offer a service to process digital documents using our technology/Platform, therefore we provide multiple ways for you to feed documents (collectively, “Content”) into our system. You can only post Content if you own all the rights to that Content, or if another rights holder has given you permission.
3.2 You do not transfer ownership of your Content simply by posting it. However, by posting Content, you grant us, our agents, licensees, and assigns an irrevocable, perpetual (non-exclusive) right and permission to reproduce, encode, store, copy, transmit, publish, post, broadcast, display, publicly perform, adapt, modify, create derivative works of, exhibit, and otherwise use your Content. Without those rights, we couldn’t offer our Services. Please note that this license continues even if you stop using our Sites .
3.3 You agree to indemnify, release, and hold us harmless from any all liability, claims, actions, loss, harm, damage, injury, cost or expense arising out of any Content you post.
3.4 Keep in mind that if you send us any information, ideas, suggestions, or other communications to us, those communications will not be confidential. Moreover, unless we tell you otherwise, we reserve the right to reproduce, use, disclose, and distribute such communications without any obligation to you.
4. Content Posted by Third Party
5. Free Trials, Statement of Work, Fees and Service Levels
5.1 The Customer may request a free trial to evaluate the Platform, which shall last for Seven (7) days from the date qBotica confirms the Free Trial has commenced (” Free Trial Term “) and which shall be governed by these Terms of Service (” Free Trial “). During the Free Trial Term, the Customer may make such use of the Platform as is reasonably required in order to evaluate it for future use in its business, but not for any other purpose (including for business and/or commercial use). qBotica reserves the right to suspend, limit or extend a Free Trial at any time in its sole discretion. On expiry of the Free Trial Term, access to the Platform will no longer be possible (but the parties may subsequently enter into a definitive agreement (including any statement of work). One Free Trial per Customer is allowed, and subsequent Free Trial requests may be rejected by qBotica. No fees shall be payable during the Free Trial Term.
5.2 qBotica and Customer may enter into definitive agreement (in respect of a Proof of Concept or standard access) in the manner and form provided by qBotica upon request and which may be executed manually or electronically.
5.3 Definitive agreement (including statement of work) shall be entered into under and incorporate the terms of these Terms of Service. On valid execution of each statement of work the terms of that statement of work are incorporated into these Terms of Service and will not constitute a separate contractual relationship between the parties. No statement of work shall be valid or binding until properly executed by each of the Customer and qBotica.
5.4 The statement of work must set out the amount and frequency of any fees to be paid by the Customer (the “Fees “).
5.5 All Fees must be paid in the manner and form set out in the relevant statement of work and clause 6. If the Fees are agreed to be paid in instalments this will not affect the Customer’s obligation to pay the whole Fees, and any failure to pay an instalment when due will render the full annual Fees payable immediately.
5.6 The Fees may be increased during the Term if the Customer wishes to increase the maximum number of “documents” and/or otherwise increase the type or level of access to Platform provided or in line with any other pricing mechanism agreed by the parties (in each case, as those terms are used in the relevant statement of work).
5.7 In addition to the fee changes set out in clause5.6, qBotica may increase the Fees at the end of the Term and end of each Renewal upon qBotica giving at least 60 days’ notice to Customer prior to the end of the Term or Renewal Term (as applicable) (the ” 60 Day Period “).
5.8 For the avoidance of doubt, this clause 5 shall not apply where the Customer purchases the access to Platform from the Reseller Partner rather than qBotica.
6. Payment
6.1 All sums payable under and in accordance with these Terms of Service shall, save as agreed otherwise (e.g. credit card), be paid by electronic transfer to qBotica’s bank account or such bank account qBotica may specify from time to time. Any charges on payments will be at the Customer’s expense.
6.2 All sums payable under these Terms of Service are exclusive of VAT or other applicable sales tax which will be payable by the Customer, in addition to the sum in question, at the rate and in the manner prevailing at the relevant tax point and in the manner prescribed by law.
6.3 Unless otherwise agreed in the relevant statement of work, all sums due under these Terms of Service are payable in full with thirty (30) days, upon delivery of any invoice by qBotica and without deduction, set off or withholding of any kind. In the event of any dispute as to the amount of an invoice, the Customer shall pay the amount in full pending the resolution of any dispute and qBotica shall make any adjustment due immediately upon such resolution.
6.4 If any sums due under these Terms of Service are not paid when due qBotica may charge interest in respect of those sums from the date due until payment is made in full (before and after any judgment) at 2% per annum accruing on a daily basis, and qBotica may suspend the Customer’s access to the Platform.
7. Credit Cards
As long as you have an outstanding balance with us, you’ll provide us with valid credit card information and authorize us to deduct the monthly charges against that credit card. You’ll replace the information for any credit card that expires with information for a valid one. Anyone using a credit card represents and warrants that they are authorized to use that credit card, and that any and all charges may be billed to that credit card and won’t be rejected. If we’re unable to process your credit card order, we’ll try to contact you by email and suspend your account until your payment can be processed.
8. Customer’s obligations
8.1 The Customer shall provide qBotica with all necessary cooperation in relation to these Terms of Service and access to such information as may be required by qBotica to provide access to the Platform. The Customer will be responsible for all activities that occur under the Customer’s account.
8.2 The Customer will ensure that all users who access the Platform are aware of and comply with the terms and the policies referred to in clause 2.2 above, and will notify qBotica immediately if it believes that there is any breach of security such as the disclosure, theft or unauthorised use of any username or password, notify qBotica immediately.
8.3 The Customer may not attempt to download, copy, modify, create derivative works from, frame, mirror, republish or distribute any portion of the Platform (but may use the Platform to operate embedded user interfaces and other similar features allowed by the Platform).
8.4 The Customer may only access the Platform for lawful purposes and may not process any data (including any Customer Data) illegally or in a manner which infringes the rights of any third party.
8.5 The Customer shall ensure that it takes all necessary steps to prevent any unauthorised access to, or use of, the Platform and notify qBotica immediately of any such unauthorised access or use.
9. Copyright and Intellectual Property Rights
9.1 qBotica is the sole owner of all the content in qBotica websites unless explicitly stated. The content including text, white papers, audio, video, case studies, illustrations, etc., is for your personal[KM9] and non-commercial use. You may not modify, distribute, reproduce, sell, display, perform, and republish any of the content in any form without prior written consent of qBotica.
9.2 The Customer acknowledges and agrees that qBotica and/or its licensors own all Intellectual Property Rights in qBotica’s brands, trademarks and logos, the Platform, and any qBotica Content. Except as expressly stated in these Terms of Service qBotica does not grant the Customer any rights in respect of those rights.
9.3 Subject to clause 9.4, the Customer and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Customer Data.
9.4 The Customer grants qBotica, free of charge, a royalty-free, worldwide, non-exclusive licence to use the Customer Data as is necessary to enable qBotica to:
(i) provide access;
(ii) perform its obligations under these Terms of Service; and
(iii) improve its services and offerings including training its personnel during and after the Term and include any Confidential Information received by qBotica from Customer in the form of documents and data associated with the documents into training data (“Training Data”) for inclusion in the training dataset of the qBotica’s Platform. Training Data shall be still owned by the Customer. For the avoidance of doubt: (a) Training Data shall be considered to be Confidential Information of the Customer; (b) any derivations of the Training Data produced by qBotica shall be owned exclusively by qBotica.
9.5 The Customer warrants that it owns the Customer Data and/or is otherwise entitled to grant the foregoing licence. If these Terms of Service are terminated, the foregoing licence will automatically terminate in respect of any future Customer Data, but not in respect of any Customer Data already provided.
9.6 The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data
10. Data Processing
10.1 For the purposes of this clause 10 and Data Processing Schedule, ” controller “, ” processor “, ” personal data “, ” process/processing “, “sub-processor ” ” technical and organisational measures ” and ” supervisory authority/authority ” shall have the meaning as set out in the applicable Data Protection Laws or (where specifically defined therein);
10.2 Each party shall comply with its obligations under applicable Data Protection Laws and, to the extent applicable under the Data Protection Laws, obtain and maintain all appropriate registrations required in order to allow that party to perform its obligations under these Terms of Service.
Data processors
10.3 Where qBotica is deemed to be acting as a processor for the Customer with respect to Personal Data shared in relation to these Terms of Service under applicable Data Protection Laws, the Data Processing Schedule shall apply to such processing.
Data controllers
10.4 Where a party is deemed to be acting as a controller with respect to personal data processed under or in relation to these Terms of Service, under applicable Data Protection Laws, this clause 10.4 shall apply, and each party shall, in its capacity as a controller:
(a) provide assistance to allow the other party to comply with any data subject requests (whether in relation to access to Customer personal data, rectification, restrictions on processing, erasure or portability) insofar as possible;
(b) provide assistance to allow the other party to comply with any other queries or complaints from a supervisory authority (as defined in Data Protection Laws) insofar as possible; promptly notify the other party of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed pursuant to these Terms of Service (“Security Incident”); and
(c) provide reasonably necessary assistance to enable the other party to notify insofar as possible: (i) the relevant supervisory authority, promptly and in any event no later than 72 hours after relevant data controller becomes aware of a Security Incident; and (ii) the relevant data subjects without undue delay (where required) of a Security Incident.
10.5 If in qBotica’s reasonable opinion the relevant data protection provisions of these Terms of Service need to be amended in order to comply with qBotica’s obligations; or pursuant to any supervisory authority opinion or guidance, qBotica shall be entitled to unilaterally amend this clause 10 and the Data Processing Schedule upon giving thirty (30) days’ notice to the Customer.
10.6 For clarity, this clause 10 and the DPA do not apply in respect of any Reseller Partner (as the relevant data protection provisions are set out separately in the Reseller Agreement).
11. No Warranties
All the content in qBotica websites are provided ‘as is’. While qBotica takes every effort to provide accurate, reliable and secure content (facts, figures, images, documents, software, etc.) in all its websites, it does not represent, endorse, warrant that the provided content is free of discrepancies, omissions, viruses, Trojan horses, worms, etc., or that it is fit for a particular purpose. You agree that you access, use, download the content and services of qBotica websites at your own discretion. You also agree that you are solely responsible for the consequences of using the content of qBotica websites.
12. Limitation of Liability and Indemnity
12.1 Nothing in these Terms of Service shall in any way exclude or limit either party’s liability: (i) death or personal injury caused by either party’s negligence or for fraudulent misrepresentation; (ii) for any other fraudulent act or omission; (iii) to pay sums properly due and owing to the other in the normal course of performance of these Terms of Service; or (iv) for any other liability which may not be excluded by law.
12.2 Subject to clause 12.1, neither party will be liable for any of the following losses or damage (whether or not such losses or damage were foreseen, direct, foreseeable, known or otherwise) howsoever arising:
(a) loss of revenue, sales, turnover, revenue or business, customers, contracts or opportunity, waste of management or other staff time, actual or anticipated profits, anticipated savings, business, opportunity, goodwill, reputation, hardware, software or data or damage to or corruption of data;
(b) any, indirect, special or consequential loss or damage howsoever caused whether or not such loss is covered in clause 12.2(a); or
(c) any losses arising as a result of any third party bringing a claim in respect of any of the types of loss in clause 12.2(a).
12.3 Subject to clause 12.1, qBotica shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of the use of the Platform and/or the access except for their normal intended purpose, any modification to Access, the continued use of any out of date version of the API, or the processing of any Customer Data.
12.4 Subject to clauses 12.1, 12.2 and 12.3 qBotica’s total aggregate liability arising out of, or in connection with these Terms of Service for negligence or breach of contract or any other reason shall in no event exceed the Fees paid.
12.5 The Customer hereby indemnifies qBotica from and against any and all losses, damages, claims, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against qBotica as a result of, or in connection with, any Customer Data or qBotica’s receipt, possession and/or use, in accordance with these Terms of Service, of any Customer Data.
12.6 qBotica will indemnify the Customer from and against any and all losses, damages, claims, costs and expenses (including reasonable external legal expenses) suffered or incurred by or awarded against the Customer as a result of any claim against the Customer by a third party that the Customer’s use of the Platform infringes the intellectual property rights of any person (save to the extent caused by the Customer Data)
13. Confidentiality
13.1 Subject to clauses 9.3 and 10, neither party shall without the consent of the other during the term of these Terms of Service (or for a period of five (5) years following disclosure of the particular Confidential Information) disclose the other party’s Confidential Information and only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, these Terms of Service.
13.2 Subject to clauses 9.3 and 10, any party disclosing Confidential Information in accordance with the above clause shall procure that the person to whom such information is disclosed is made aware of the obligations of confidentiality under these Terms of Service and complies with those obligations as if it were a party to these Terms of Service.
13.3 The confidentiality restrictions do not apply to Confidential Information (but excluding Personal Data):
(a) which is in or comes into the public domain other than through breach of these Terms of Service;
(b) insofar as it comes lawfully into the possession of the recipient party from a third party;
(c) which the recipient party can prove was already known to it before its receipt from the providing party;
(d) to the extent that it is required to be disclosed by law or the requirements of any recognised stock exchange, or authority of competent jurisdiction to whose rules the party making the disclosure is subject, whether or not having the force of law.
9.4 Subject to clause 9.3, qBotica acknowledges that the Customer Data is the Confidential Information of the Customer, and the Customer acknowledges that details of these Terms of
Use, Fees and qBotica Content, are the Confidential Information of qBotica.
14. Third Party Websites
The service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. When you access third party websites, you do so at your own risk. These other websites are not under qBotica’s control, and you acknowledge that qBotica is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by qBotica or any association with its operators. You further acknowledge and agree that qBotica shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource.
15. Term and Termination
15.1 Where qBotica agrees to provide a Customer with access to Platform directly (rather than via a Reseller), the parties shall specify in an statement of work
(a) the target date on which qBotica shall begin to provide the Customer with access to Platform (which may or may not be the same as the signature date of that statement of work) (” Start Date “);
(b) the date on which qBotica shall stop providing the Customer with access to Platform (“End Date”); and
(c) whether there are any renewal rights.
15.2 These Terms of Service shall automatically renew at the end of the Term for a further twelve (12) months (each period a “ Renewal ” or ” Renewal Term “), and the same will apply on each anniversary of each Renewal, save where either party gives the other not less than sixty (60) days’ notice prior to the end of the Term or any Renewal.
15.3 Unless otherwise agreed, the “Term” commences on the earlier of the Free Trial commencement or the date the parties both sign the first statement of work and ends on the later of the end of the Free Trial Term or the End Date (as applicable).
15.4 qBotica may without liability, terminate these Terms of Service, or alternatively, may suspend access to the Platform, by giving the Customer written notice if:
(a) any invoiced amount (not then-currently being disputed in good faith) is outstanding beyond the due date for payment;
(b) any provision of clause 8 or 9 is breached; and/or
(c) the Customer is in persistent or repeated breach of any of its obligations under these Terms of Service (whether or not it is the same obligation that is breached and whether or not such breaches are remedied), and, in each case, the Customer has not remedied the issue in full to qBotica’s satisfaction within ten (10) days of qBotica requiring it to do so.
15.5 Either party may terminate this Terms of Service immediately upon notice if the other party becomes Insolvent.
15.6 Termination of an individual statement of work shall not affect other statement of work. Termination of these Terms of Service shall automatically terminate all statement of work.
15.7 On termination of these Terms of Service for any reason:
(a) all licences granted under these Terms of Service shall immediately terminate;
(b) the Customer shall return and make no further use of, or access, any Platform, documentation and other items (and all copies of them) belonging to qBotica (if any);
(c) all amounts payable to qBotica by the Customer shall become immediately due and owing (and no refund of Fees paid in advance shall be due in respect of any unexpired portion of the then-current Term including any fee paid in respect of any Proof of Concept phase); and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
16. WARRANTY DISCLAIMER
THE PRODUCT, SERVICE OR PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. QROTICA, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE PRODUCT, SERVICE OR PLATFORM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE PRODUCT, SERVICE OR PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE PRODUCT, SERVICE OR PLATFORM WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
17. Accounts
You may browse the Site and view Content and submissions without registering, but in order to access some features of the Product, Service or Platform, you will have to create an account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify qBotica immediately of any breach of security or unauthorized use of your account. Although qBotica will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of qBotica or others due to such unauthorized use.
16. Governing Law
This ‘Terms of Service’ is made subject to, and shall be construed in accordance with, the laws of Arizona and United States of America. The parties agree to submit themselves to the exclusive jurisdiction of courts of Arizona, USA, and Canada.
17. General
17.1 Neither party shall have any liability or be deemed to be in breach of these Terms of Service for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party including, without limitation, any of the following: power failure, act of God, governmental act, war, fire, flood, explosion or civil commotion. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If an event of force majeure occurs and lasts for more than ninety (90) days either party may give written notice to the other to terminate these Terms of Service and neither party will have any liability to the other except that the Customer will remain liable for any unpaid Fees.
17.2 The failure or delay by either party to enforce the terms of these Terms of Service or to exercise any remedy or right shall not be treated as a waiver of any breach or right to enforcement or exercise. If any part of these Terms of Service is ruled illegal, void or unenforceable then that part shall be deemed not to be a part of this Agreement and the enforceability of the remainder of these Terms of Service shall not be affected.
17.3 The Customer shall not, without the prior written consent of qBotica, assign any of its rights or obligations under these Terms of Service. These Terms of Service may not be varied except in writing signed by the authorised representatives of all the parties to these Terms of Service. qBotica and Customer agree that there shall be no third party beneficiaries to this Terms of Service, including, but not limited to, any sub-licensee or end user of Customer or the insurance providers for either party. To the extent it is allowed by law, any legislation in any relevant jurisdiction giving rights to third parties is hereby excluded.
17.4 Nothing in these Terms of Service shall be deemed to constitute a partnership or joint venture or contract of employment between the parties nor constitute either party the agent of the other.
17.5 Neither party shall make or issue any announcement or public circular relating to the subject matter of these Terms of Service without the prior written approval of the other. qBotica may use the name of Customer as a factual reference to the fact that the Customer is or was a customer, on its website and in pitch materials, without the prior written consent of Customer.
17.6 Customer represents that it has complied and shall comply with all applicable anti-bribery laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the UK Bribery Act [KM10] and similar laws of any other governmental authority, and has not taken and shall not take any action in furtherance of an unlawful offer, promise, or payment to or for the benefit of any person, including but not limited to
(i) any government official or employee (including, without limitation, any official or employee of a government agency, regulatory authority or entity owned or controlled by the government), any candidate for public office or official of a political party, or any official or employee of a public international organization (any of the foregoing, a “Government Official”); (ii) any member of a Government Official’s family; or (iii) any political party. In the event that Customer was required to undergo qBotica’s anti-bribery due diligence process prior to execution of an statement of work and/or this Terms of Service, Customer further represents and warrants that any certification provided by Customer as part of the qBotica’s due diligence process is true and accurate. Customer shall notify qBotica immediately in the event that any of the statements in such certification shall no longer be true and accurate.
17.7 These Terms of Service, and any documents explicitly referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.8 Each of the parties acknowledges and agrees that in entering into these Terms of Service it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these Terms of Service or not) relating to the subject matter of these Terms of Service, other than as expressly set out in this Terms of Service.
17.9 In the event of any inconsistencies between the terms set out in the DPA, the statement of work and these Terms of Service, the terms shall be construed in the same order.
18. Definitions:
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control with a Party. For purposes of the foregoing, “control” shall mean the ownership of more than fifty percent (50%) of the (i) voting power to elect the directors of the said entity, or (ii) ownership interest in the said entity; means an entity that directly or indirectly controls, is controlled by or is under common control with a Party. For purposes of the foregoing, “control” shall mean the ownership of more than fifty percent (50%) of the (i) voting power to elect the directors of the said entity, or (ii) ownership interest in the said entity;
“API” means qBotica’s API to allow access to Platform; means qBotica’s API to allow access to Platform;
“Confidential Information” means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of these Terms of Service), including all information relating to that other’s business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential and which includes Personal Data unless otherwise specified or the context so requires; means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of these Terms of Service), including all information relating to that other’s business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential and which includes Personal Data unless otherwise specified or the context so requires;
“Customer” or “You” means the end user customer who is receiving access to Platform either: (a) directly from qBotica under an statement of work, and whose details are set out in that statement of work; or (b) by purchasing via a Reseller Partner, and any of their Affiliates;
“Customer Data” means all information, data or other materials inputted into the Platform by the Customer or otherwise on its behalf, including information automatically extracted from the Customer documents and information manually corrected on the Platform by or on behalf of a Customer;
“Data Protection Laws” means all privacy laws applicable to any personal data processed under or in connection with these Terms of Service, including, without limitation, the General Data Protection Regulation 2016/679 (the “GDPR”)), the Privacy and Electronic Communications Directive 2002/58/EC (as the same may be superseded by the Regulation on Privacy and Electronic Communications (“ePrivacy Regulation”)) and all national legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable data protection authority, all as amended, re-enacted and/or replaced and in force from time to time;
“Data Processing Schedule” or “DPA” means the Data Processing Schedule attached to these Terms of Service;
“Fees” means the fees for access to Platform as specified in the statement of work being payable either directly by the Customer (in the event that the Customer contracts directly with the qBotica) or the Reseller Partner (in the event that the Customer procures Access from a Reseller);
“Free Trial” or ” Free Trial Term ” have the meanings set out in clause 5.1;
“Insolvent” means, in relation to a party, where that party becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 30 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so;
“Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);
“Personal Data” means all data which is defined as ‘personal data’ under Data Protection Laws and which is provided by the Customer to qBotica (directly or indirectly), and accessed, stored or otherwise processed by qBotica as a data processor as part of its provision of the access to Platform to Customer and to which Data Protection Laws apply from time to time;
“Platform” means qBotica’s on-premises or cloud-based technology for data extraction from documents, the cloud based user interface for verification and correction of the extracted data, the extension environment and the reporting database;[GG11]
“Platform Access Ways” means any and all of: URL, user id, API key and similar that enable the Customer to work with the Platform;
“Proof of Concept” or “Proof of Concept Term” means the proof of concept phase described in an statement of work and the related duration set out in that statement of work;
“qBotica Content” means all data, information and material owned by or licensed to qBotica and comprised within the Platform and/or access, but excluding Customer Data;
“Reseller Partner” means an authorised partner reseller of Platform through which a Customer may procure access to Platform. For clarity, each Reseller Partner must enter into a “Reseller Agreement ” as between qBotica and Reseller;
“Statement of work” means as applicable: (a) the Customer’s written instruction (including in electronic form) directly from the Customer to qBotica to provide access to Platform; or (b) the written instructions (including in electronic form) from the Reseller Partner to qBotica to provide access to Platform to the Reseller Partner and/or any downstream end users (including the Customer), in both cases incorporating, and subject to, these Terms of Service;
“Term” has the meaning set out in clause 15.3;
“Terms of Service” means these Terms of Service together with all the recitals, clauses, schedules, annexes and all other documents referred to herein and, in the event that the Customer procures access to Platform directly from qBotica, the Access Order; and
“URL” means qBotica’s web URL through which the Customer will access the Platform.
In this Agreement: (i) references to persons include all forms of legal entity including an individual, company, body corporate, unincorporated association and partnership; (ii) the word “including” is to be construed as being by way of illustration only and is not to be construed so as to limit the generality of any preceding words; (iii) the words “other” and “otherwise” are not to be construed as being limited by any words preceding them; (vi) headings are used for convenience only and do not affect its interpretation; (v) singular includes the plural, and vice versa; and(vi) reference to a “party” or “parties” means the parties to these Terms of Service, being qBotica and the Customer or Reseller Partner, as applicable.
Data Protection Schedule
This Data Protection Schedule (“DPA”) forms part of the Terms of Service (the “Agreement”) between: (i) qBotica, Inc (“qBotica”); and (ii) Customer.
Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an DPA to the Agreement. Except where the context requires otherwise, references in this DPA to the Agreement are to the Agreement as amended by, and including, this DPA.
- Definitions.
1.1 In this DPA, the following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1 “Applicable Laws” means (a) European Union or Member State laws with respect to any Customer Personal Data in respect of which any Customer Group Member is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Customer Personal Data in respect of which any Customer Group Member is subject to any other Data Protection Laws;
1.1.2 “Customer Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Customer, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
1.1.3 “Customer Group Member” means Customer or any Customer Affiliate;
1.1.4 “Customer Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of a Customer Group Member pursuant to or in connection with the Agreement;
1.1.5 “Contracted Processor” means qBotica or a Subprocessor;
1.1.6 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.7 “EEA” means the European Economic Area;
1.1.8 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.1.9 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.10 “Restricted Transfer” means:
1.1.10.1 a transfer of Customer Personal Data from any Customer Group Member to a Contracted Processor; or
1.1.10.2 an onward transfer of Customer Personal Data from a Contracted Processor to a Contracted Processor, or between two establishments of a Contracted Processor,
in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses to be established under Section 6.3.3 or 12 below;
1.1.11 “Services” means the services and other activities to be supplied to or carried out by or on behalf of qBotica for Customer Group Members pursuant to the Agreement;
1.1.12 “Standard Contractual Clauses” means the standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (notified under document C(2010)593) and under Section 13.4;
1.1.13 “Subprocessor” means any person (including any third party and any qBotica Affiliate, but excluding an employee of qBotica or of its sub-contractors) appointed by or on behalf of qBotica or any qBotica Affiliate to Process Personal Data on behalf of any Customer Group Member in connection with the Agreement; and
1.1.14 “qBotica Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with qBotica, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
1.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
1.3 The word “include” shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
2. Authority. qBotica warrants and represents that its entry into this DPA is duly and effectively authorized.
3. Processing of Customer Personal Data.
3.1 qBotica shall:
3.1.1 comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and
3.1.2 not Process Customer Personal Data other than on the relevant Customer Group Member’s documented instructions unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case qBotica shall to the extent permitted by Applicable Laws inform the relevant Customer Group Member of that legal requirement before the relevant Processing of that Personal Data.
3.2 Each Customer Group Member:
3.2.1 shall instruct qBotica (and authorizes qBotica to instruct each Subprocessor) to:
3.1.1.1 Process Customer Personal Data; and
3.1.1.2 in particular, transfer Customer Personal Data to any country or territory, as reasonably necessary for the provision of the Services and consistent with the Agreement; and
3.2.2 warrants and represents that it is and will at all relevant times remain duly and effectively authorized to give the instruction set out in Section 3.2.1 on behalf of each relevant Customer Affiliate.
3.3 Annex 1 to this DPA sets out certain information regarding the Contracted Processors’ Processing of the Customer Personal Data as required by Article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Customer may make reasonable amendments to Annex 1 by written notice to qBotica from time to time as Customer reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this Section 3.3) confers any right or imposes any obligation on any party to this DPA.
4. qBotica Personnel. qBotica shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with Applicable Laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
5. Security.
5.2 In assessing the appropriate level of security, qBotica shall take into account the particular risks that are presented by Processing, such as those associated with a Personal Data Breach.
6. Subprocessing.
6.1 Each Customer Group Member authorizes qBotica to appoint (and permit each Subprocessor appointed in accordance with this Section 6 to appoint) Subprocessors in accordance with this Section 6 and any restrictions in the Agreement.
6.2 qBotica may continue to use those Subprocessors already engaged by qBotica as of the date of this DPA, subject to qBotica in each case as soon as practicable meeting the obligations set out in Section 6.4.
6.3 With respect to Subprocessors, qBotica shall:
6.3.1 before the Subprocessor first Processes Customer Personal Data (or, where relevant, in accordance with Section 6.2), carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Customer Personal Data required by this DPA and the Agreement;
6.3.2 ensure that the arrangement between on the one hand (a) qBotica, or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, is governed by a written contract including terms which offer at least the same level of protection for Customer Personal Data as those set out in this DPA and meet the requirements of Article 28(3) of the GDPR;
6.3.3 if that arrangement involves a Restricted Transfer, ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement between on the one hand (a) qBotica, , or (b) the relevant intermediate Subprocessor; and on the other hand the Subprocessor, or before the Subprocessor first Processes Customer Personal Data procure that it enters into an agreement incorporating the Standard Contractual Clauses with the relevant Customer Group Member(s) (and Customer shall procure that each Customer Affiliate party to any such Standard Contractual Clauses co-operates with their population and execution); and
6.4 qBotica shall ensure that each Subprocessor performs the obligations under Sections 3.1, 4, 5, 7.1, 8.2, 9 and 11.1, as they apply to Processing of Customer Personal Data carried out by that Subprocessor, as if it were party to this DPA in place of qBotica.o-operates with their population and execution); and
7. Data Subject Rights.
7.1 Taking into account the nature of the Processing, qBotica shall assist each Customer Group Member by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer Group Members’ obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
7.2 qBotica shall:
7.2.1 promptly notify Customer if any Contracted Processor receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and
7.2.2 ensure that the Contracted Processor does not respond to that request except on the documented instructions of Customer or the relevant Customer Affiliate or as required by Applicable Laws to which the Contracted Processor is subject, in which case qBotica shall to the extent permitted by Applicable Laws inform Customer of that legal requirement before the Contracted Processor responds to the request.
8. Personal Data Breach.
8.1 qBotica shall promptly[KM12] notify Customer upon qBotica or any Subprocessor becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow each Customer Group Member to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
8.2 qBotica shall co-operate with Customer and each Customer Group Member and take such reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
9. Data Protection Impact Assessment and Prior Consultation. qBotica shall provide reasonable assistance to each Customer Group Member with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required of any Customer Group Member by Article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
10. Deletion or return of Customer Personal Data.
10.1 Subject to Sections 10.2 and 10.3 qBotica shall promptly upon the date of cessation of any Services involving the Processing of Customer Personal Data (the “Cessation Date”), delete and procure the deletion of all copies of those Customer Personal Data.
10.2 Subject to Section 10.3, Customer may, upon expiration of the Agreement, by written notice to qBotica, require qBotica to (a) return a complete copy of all Customer Personal Data to Customer by secure file transfer in such format as is reasonably notified by Customer to qBotica; and (b) delete and procure the deletion of all other copies of Customer Personal Data Processed by any Contracted Processor.
10.3 Notwithstanding the foregoing, each Contracted Processor may retain Customer Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that qBotica shall ensure the confidentiality of all such Customer Personal Data and shall ensure that such Customer Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
10.4 qBotica shall provide written notice to Customer that it has fully complied with this Section 10.
11. Audit rights.
11.1 Subject to Sections 11.2 to 11.4, qBotica shall make available to each Customer Group Member on request reasonable documentation to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by any Customer Group Member or an auditor mandated by any Customer Group Member in relation to the Processing of the Customer Personal Data by the Contracted Processors.
11.2 Information and audit rights of the Customer Group Members only arise under Section 11.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law (including, where applicable, Article 28(3)(h) of the GDPR).
11.3 Customer or the relevant Customer Affiliate undertaking an audit shall give qBotica reasonable notice of any audit or inspection to be conducted under Section 11.1 and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Contracted Processors’ premises, equipment, personnel and business while its personnel are on those premises in the course of such an audit or inspection. A Contracted Processor need not give access to its premises for the purposes of such an audit or inspection:
11.3.1 to any individual unless he or she produces reasonable evidence of identity and authority;
11.3.2 outside normal business hours at those premises, unless the audit or inspection needs to be conducted on an emergency basis and Customer or the relevant Customer Affiliate undertaking an audit has given notice to qBotica that this is the case before attendance outside those hours begins; or
11.3.3 for the purposes of more than one audit or inspection, in respect of each Contracted Processor, in any calendar year, except for any additional audits or inspections which a Customer Group Member is required or requested to carry out by Data Protection Law, a Supervisory Authority or any similar regulatory authority responsible for the enforcement of Data Protection Laws in any country or territory.
12. Restricted Transfers.
12.1 Subject to Section 12.3, each Customer Group Member (as “data exporter”) and each Contracted Processor, as appropriate, (as “data importer”) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from that Customer Group Member to that Contracted Processor.
12.2 The Standard Contractual Clauses shall come into effect under Section 12.1 on the later of:
12.2.1 the data exporter becoming a party to them;
12.2.2 the data importer becoming a party to them; and
12.2.3 commencement of the relevant Restricted Transfer.
12.3 Section 12.1 shall not apply to a Restricted Transfer unless its effect, together with other reasonably practicable compliance steps (which, for the avoidance of doubt, do not include obtaining consents from Data Subjects), is to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Law.
12.4 qBotica warrants and represents that, before the commencement of any Restricted Transfer to a Subprocessor, qBotica’s or the relevant qBotica Affiliate’s entry into the Standard Contractual Clauses under Section 12.1, and agreement to variations to those Standard Contractual Clauses made under Section 13.4.1, as agent for and on behalf of that Subprocessor shall be duly and effectively authorized (or subsequently ratified) by that Subprocessor.
13. General Terms.
13.1 Without prejudice to clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses:
13.1.1 the parties to this DPA hereby submit to the choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this DPA, including disputes regarding its existence, validity or termination or the consequences of its nullity; and
13.1.2 this DPA and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated for this purpose in the Agreement.
13.2 Nothing in this DPA reduces qBotica’s obligations under the Agreement in relation to the protection of Personal Data or permits qBotica to Process (or permit the Processing of) Personal Data in a manner which is prohibited by the Agreement. In the event of any conflict or inconsistency between this DPA and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.
13.3 Subject to Section 13.2, with regard to the subject matter of this DPA, in the event of inconsistencies between the provisions of this DPA and any other agreements between the parties, including the Agreement and including (except where explicitly agreed otherwise in writing, signed on behalf of the parties) agreements entered into or purported to be entered into after the date of this DPA, the provisions of this DPA shall prevail.
13.4 Customer may:
13.4.1 by at least thirty (30) calendar days written notice to qBotica from time to time make any variations to the Standard Contractual Clauses (including any Standard Contractual Clauses entered into under Section 12.1), as they apply to Restricted Transfers which are subject to a particular Data Protection Law, which are required, as a result of any change in, or decision of a competent authority under, that Data Protection Law, to allow those Restricted Transfers to be made (or continue to be made) without breach of that Data Protection Law; and
13.4.2 propose any other variations to this DPA that Customer reasonably considers to be necessary to address the requirements of any Data Protection Law.
13.5 If Customer gives notice under Section 13.4.1:
13.5.1 qBotica shall promptly co-operate (and ensure that any affected Subprocessors promptly co-operate) to ensure that equivalent variations are made to any agreement put in place under Section 6.4.3; and
13.5.2 Customer shall not unreasonably withhold or delay agreement to any consequential variations to this DPA proposed by qBotica to protect the Contracted Processors against additional risks associated with the variations made under Section 13.4.
13.6 If Customer gives notice under Section 13.4.2, the parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified in Customer’ notice as soon as is reasonably practicable.
13.7 Neither Customer nor qBotica shall require the consent or approval of any Customer Affiliate or qBotica Affiliate to amend this DPA pursuant to this Section 13.5 or otherwise.
Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.