Legal
Last updated December 24, 2024
IMPORTANT - READ CAREFULLY: Do not load or use the OneIQ data collection software or the online web portal ("Software") until you have carefully read and agreed to the following terms and conditions. This Agreement becomes effective upon the earliest of: accessing or using the Software, clicking an acceptance button, or entering into an Order.
OneIQ grants Customer a subscription, nonexclusive, nontransferable right to use the Software as hosted or as a downloadable component per an Order.
Customer may install the downloadable component of the Software inside container, cloud and datacenter infrastructure. Customers authorize collection of billing, configuration, performance, and operational data about applications, infrastructure, servers, and systems.
Customers may collaborate with other OneIQ users by sharing Software Obtained Information in authorized IT Environments and Workspaces. Customers are solely responsible for determining user access levels. Software Obtained Information stored in IT Environments is the property of the legal entity represented by the Customer. Workspace content belongs to sponsoring technology vendors. Information cannot be shared with Solution Providers unless they are licensed by OneIQ.
OneIQ shall use the Software Obtained Information only (i) as directed by the Customer or (ii) as directed by the technology vendor through which Customer received the Software. Customer direction governs in cases of conflict.
Software may augment and improve information quality through anonymous data exchanges with OneIQ. The software records asset tags, serial numbers, and product keys to retrieve lifecycle and warranty data from third-party providers. OneIQ and Solution Providers may use the information to provide recommendations, design solutions, and deliver consulting services. OneIQ shall keep confidential all Software Obtained Information and shall not without Customer's prior written consent disclose or use any Software Obtained Information for any purpose except as necessary for properly performing this Agreement.
OneIQ collects data from publicly available and third-party sources. Enriched customer and contact data may be provided within the Software for use solely in connection with it. OneIQ may modify or stop providing this data at any time.
Subject to OneIQ's and Customer's consent, Solution Providers may access a designated subset of Software Obtained Information outside of IT Environments and Workspaces. Solution Providers may use information to support current and future engagements with customers.
Customer shall not allow any website that is not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer's web site that provides access to the Software. Reverse engineering, disassembling, and decompiling are prohibited. Permitted results of such activities become Confidential Information.
Software collects and uploads Software Obtained Information to OneIQ or Solution Providers. OneIQ and Solution Providers may use the Software Obtained Information to provide the Customer with artificial intelligence for IT operations.
Customer shall pay OneIQ the fees indicated on an Order or in the Software. Unless otherwise agreed, fees are due within 15 days of invoice date. Initial payment must be made on the Order Effective Date.
Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
Service fees exclude taxes or levies. Customer shall reimburse OneIQ and hold OneIQ harmless for all sales, use, VAT, excise, property or other taxes or levies which OneIQ is required to collect or remit to applicable tax authorities. This excludes OneIQ's income or franchise taxes, or taxes for which customers are exempt with proper certification.
Customers are solely responsible for: their IT Environment, account data, customer data and credentials, providing required notices and consents from content providers and users, entering agreements with Solution Providers regarding data protection and privacy, ensuring Software use is only for their IT Environment, and reviewing all proposed actions and recommendations.
OneIQ reserves the right to investigate potential agreement violations. In the event OneIQ reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity, including termination, OneIQ will have the right to suspend Authorized Users suspected of the violation from accessing the Software for so long as is reasonably necessary to address the potential violation.
OneIQ shall use commercially reasonable efforts to provide corrections to reported problems that (i) prevent the Software from conforming in material respects to its specifications, and (ii) are replicated and diagnosed by OneIQ as defects in the Software. OneIQ will begin working within 14 days of written notice. Additional features are not included in maintenance services.
OneIQ's goal is to provide Software availability twenty-four hours per day, seven days per week ("24x7 Availability") except during times of scheduled updates. This is described as a goal, not a guarantee. OneIQ uses reasonable efforts to achieve 99% availability in North America for public production servers, excluding scheduled downtime. OneIQ does not and cannot control the flow of data to or from OneIQ's network and other portions of the Internet. OneIQ disclaims liability for third-party internet service disruptions.
OneIQ is not obligated to provide support for unsupported code. Support for unsupported code requires execution of a professional services agreement.
OneIQ shall have the right to use third parties, including employees of OneIQ's affiliates and subsidiaries ("Subcontractors") in performance of its obligations and services hereunder.
As between the parties, Customer shall own all right, title and interest in and to the Customer's data input by Customer to the Software and Software Obtained Information in IT Environments. Customer irrevocably acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the Software or OneIQ materials provided to Customer. OneIQ owns the Software and materials, subject to third-party intellectual property limitations.
As between the parties, OneIQ owns and shall continue to own all right, title and interest in de-identified configuration, performance and usage data generated through Customer's use of the Software (collectively, "Anonymized Data"). OneIQ may use this data to develop features, build algorithms, perform analysis, and for other legal purposes. Customers automatically grant a royalty-free license for such use.
OneIQ is a registered trademark in the U.S. Patent and Trademark Office. All other product names, logos, brands, trademarks and registered trademarks are property of their respective owners.
The Software includes technology patented under U.S. Patent No. 11,797,701.
"Confidential Information" includes information marked and disclosed, generally not publicly known, whether tangible or intangible, as well as information derived from such information. All Confidential Information in tangible form shall be marked as "Confidential" or the like or, if intangible (e.g. orally disclosed), shall be designated as being confidential at the time of disclosure. The following is deemed OneIQ Confidential Information: the Software, related materials, oral and visual information about it, and agreement terms.
Obligations do not apply to material that: becomes public domain, is independently developed, is rightfully obtained from third parties, or was already known. Neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party.
Nothing in this Agreement shall be construed to convey any title or ownership rights to the Software or other Confidential Information to Customer. Information cannot be sold, leased, licensed, assigned, transferred, or disclosed except as expressly permitted. Each party must prevent theft, disclosure, and unauthorized copying.
Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party. Access is restricted to employees or Subcontractors who require it and have agreed in writing to binding provisions.
Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief.
Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other OneIQ materials provided to Customer shall be owned by OneIQ. Customers agree to assign such rights to OneIQ.
Software outputs, including but not limited to Software Obtained Information, reports and solutions, may not be published without express written permission from OneIQ.
Customer and OneIQ warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
Customers acknowledge they are not relying on warranties not expressly provided.
EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED "AS IS" AND ONEIQ MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. ONEIQ MAKES NO WARRANTIES REGARDING SOFTWARE OR SOLUTION PROVIDER ACTIONS AND RECOMMENDATIONS.
Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of OneIQ.
IN NO EVENT SHALL ONEIQ BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR ONEIQ SOFTWARE AND SERVICES, WHICH GAVE RISE TO SUCH DAMAGES IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH DAMAGES.
IN NO EVENT SHALL ONEIQ BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE.
OneIQ may terminate if: Customer fails to pay within 15 days past due, Customer fails to perform material obligations after 30 days notice, or Customer files bankruptcy or insolvency.
Customer may terminate on 30 days written notice if OneIQ fails to perform material obligations and does not cure within 30 days of notice.
Upon termination of this Agreement, Customer shall no longer access the Software and Customer shall not circumvent any security mechanisms contained therein.
Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer's obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
Customer agrees that no employees of OneIQ shall be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.
Customer agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement. This Agreement is not governed by the United Nations Convention on International Sale of Goods or UCITA.
Customer may not assign this Agreement or otherwise transfer any right of use hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of OneIQ. Any such violation is null and void.
The provisions set forth in Sections 2, 6, 7.2, 8, 9.3, 9.4, and 11 of this Agreement shall survive termination or expiration of this Agreement.
Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. Material breach notices must clearly define the specific breached contractual obligation.
OneIQ shall not be liable to Customer for any delay or failure of OneIQ to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of OneIQ, including acts of God, floods, fires, utility loss, and customer delays.
Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer must ensure this provision is included in any government agreements.
This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto.
In the event of a conflict between the terms and conditions of this Agreement, an Order, or an End User License Agreement, the terms and conditions of the Order, Agreement, or End User License Agreement shall prevail, in that order.
The parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
During the term of this Agreement and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of OneIQ without the prior written consent of OneIQ. Customer also cannot solicit former employees for one year after their departure. Violation results in liquidated damages equal to 200% of the person's gross annual compensation.
Customer agrees to cooperate with OneIQ in preparation of a OneIQ-sponsored testimonial for online or social media, and for use in/on OneIQ's Web site, marketing materials, trade shows, public advertisements, and other media. OneIQ may include Customer logos on publicly displayed customer lists.
No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect.
This Agreement shall be governed and interpreted by the laws of the Province of Ontario, Canada without regard to the conflicts of law provisions of any province or jurisdiction. Any action arising out of, or related to, this agreement shall be brought in the courts located in Ontario, Canada and each party hereby submits to the exclusive jurisdiction of such courts.