Based on the Services Agreement (hereinafter the "SA") provided by Molecular Quantum Solutions ApS (hereinafter the "MQS" or individually the "Party" and together with the Customer the "Parties"), the customer (hereinafter the "Customer" or individually the "Party" and together with MQS the "Parties") agrees to be bound, without reservation, to the following MQS Service Terms and Conditions (hereinafter "T&C").
The SA, these T&C and the annexes mentioned herein are all an integral part of the agreement between MQS and the Customer (hereinafter the "Agreement").
MQS operates a platform and an application as described in the SA (hereinafter the "Platform") and in connection therewith provides to the Customer certain services (hereinafter "Services") as specified in the SA and in these T&C.
As part of its Services, MQS:
The Services are subject to these T&C and to the timely payment of the fees set forth in the SA by the Customer.
During the Term MQS will provide the Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the service level agreement set out in Annex 2.
MQS may sub-contract the provision of any of the Services including Support Services at its own free discretion without requiring the consent of the Customer.
Subject to the Customer's compliance with the Agreement and to the Customer paying the Fees, and except as otherwise agreed in the SA, MQS grants to the Customer a non-exclusive licence to use the Platform for the purposes specified in the SA (hereinafter the "Permitted Purpose") during the term of the agreement.
The use of the Platform by the Customer shall be subject to the following licensing terms:
For the avoidance of doubt, the Customer has no right to directly or indirectly via a third party access the source code of the Platform, either during or after the Term.
The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.
It is the Customer's responsibility to ensure and comply with internal policies, union contracts as well as legal requirements of the respective countries regarding the privacy protection of individual employees.
The Customer agrees to ensure that access to the Platform is strictly restricted to persons authorised to use it under the Agreement. Authorised persons shall be limited to those assigned a dedicated user seat as defined in the Agreement. Each user seat is personal, non-transferable, and may not be shared among multiple individuals unless expressly permitted in writing by the MQS.
The Customer acknowledges that the use of MQS's services is subject to the End-User License Agreement (EULA) available at https://mqs.dk/legal/MQS_EULA.html or as otherwise provided by MQS. The Customer shall ensure that all individuals who access or use the services under this Agreement, including employees, agents, and subcontractors, are made aware of and comply with the EULA. Any breach of the EULA by such individuals shall be deemed a breach of this Agreement by the Customer. The Customer shall indemnify and hold MQS harmless from any claims, damages, or liabilities arising from non-compliance with the EULA by its users.
MQS reserves the right to audit the Customer's use of the Platform to ensure compliance with licensing and usage terms. Audits will be conducted with reasonable notice and during business hours.
It is the Customers sole responsibility to integrate with MQS Connect API and/or use any other integration tools provided by the Provider, including the SDK and user interfaces (UIs), and to transmit the relevant data through such tools as specified in the Documentation. The Customer acknowledges that the SDK and UIs operate on top of the API and that correct data transmission remains the Customer's responsibility regardless of the integration method chosen.
The Customer will ensure that all instructions in relation to the Agreement and Customer's use of the Service will be given by a duly authorized representative of the Customer to MQS representative as notified to the Customer by MQS in the SA.
MQS:
The Parties will hold contract management meetings at Customer's site, or by telephone or via the internet at the reasonable request of either Party.
The Customer agrees to pay the Fees as set forth in the SA.
If the Customer does not timely pay any amount properly due to MQS, MQS may charge the Customer interest on the overdue amount at the rate of 5% per year from time to time (which interest will accrue daily and be compounded quarterly).
MQS may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to MQS are overdue by more than 30 calendar days. In the case of a suspension of the Service, the Customer remains fully obligated to pay the Fees and the Customer is not entitled to claim any refunds or damages.
All intellectual property rights pertaining to the Services and the Platform shall, as between the Parties, be the exclusive property of MQS. This includes intellectual property rights in Customisations as per Section1.3.4.
The data collected and processed via the Platform consist of:
(hereinafter "Customer Data").
The Customer is owner of the Customer Data and MQS processes the Customer Data on behalf of the Customer subject to the Agreement.
The Customer acknowledges that any data models and algorithms generated by MQS based on the use of the Service by the Customer and on Customer Data are the sole property of MQS to be used by MQS at its free discretion for any purposes, provided that Customer Data will not be used to train machine learning models, nor analyzed by MQS for any purpose other than providing and maintaining the Service in accordance with the Agreement and the Documentation.
The Customer warrants to MQS that
MQS warrants to the Customer that:
The Customer acknowledges that:
All of the Parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be made or implied into the Agreement.
Nothing in the Agreement will:
MQS will not be liable:
The Customer warrants that it has the legal right to disclose all data protected by any applicable data protection legislation (hereinafter "Personal Data") that it does in fact disclose to MQS under or in connection with the Agreement.
MQS shall process Personal Data on behalf of the Customer in accordance with the DPA ([insert link] and MQS's privacy policy ([insert link]).
MQS warrants that:
MQS covenants to keep confidential and not disclose the customer information that is marked confidential (hereinafter "Customer Confidential Information") to any person save as expressly permitted by the Agreement. For the sake of clarity, nothing in this Section 9 shall restrict MQS in engaging third party providers (for example third party Internet service providers) as set forth in Section 1.2.2.
The Customer covenants to keep confidential and not disclose any information disclosed (whether in writing, orally or otherwise) by MQS to the Customer (hereinafter "Provider Confidential Information") save as expressly permitted by the Agreement.
Confidential information of a Party may be disclosed by the other Party to that other Party's officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the confidential information disclosed.
The obligations set out in this Section 9 shall not apply to:
Neither Party will make any public disclosure relating to the conditions of the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the other Party. Except as otherwise agreed in the SA, MQS shall be entitled to identify and name the Customer in any public disclosure for customer reference purposes.
The Agreement is entered into for the fixed term specified in the SA (hereinafter the "Term").
Either Party may terminate the Agreement immediately by giving written notice to the other Party if the other Party:
Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): 4, 9 and 11.2.
Termination of the Agreement will not affect either Party's accrued liabilities and rights as at the date of termination.
Where a Force Majeure Event gives rise to a failure or delay in either Party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
A Party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:
The affected Party will take reasonable steps to mitigate the effects of the Force Majeure Event.
No breach of any provision of the Agreement will be waived except with the express written consent of the Party not in breach.
If a clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant clause will be deemed to be deleted). The Parties commit themselves to substitute the ineffective clause with one that most closely reflects the economic intention of the ineffective clause. The same applies to unintentional gaps in the contract.
Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the Parties.
This Agreement may not be varied except by a written document signed by or on behalf of each of the Parties.
The Customer may not assign any or all of its contractual rights and/or obligation without the prior written consent of MQS.
The Customer hereby agrees that MQS may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate or any successor to all or a substantial part of the business of MQS from time to time.
Neither Party will, without the other Party's prior written consent, either during the term of the Agreement or within 6 months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of the other Party who has been involved in the performance of the Agreement.
Each Party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that Party's power, which are necessary to enable the Parties to exercise their rights and fulfil their obligations under the Agreement.
This Agreement is made for the benefit of the Parties, and is not intended to benefit any third Party or be enforceable by any third party. The rights of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
This Agreement constitutes the entire agreement between the Parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the Parties in respect of that subject matter.
This Agreement will be governed by and construed in accordance with the substantive laws of Denmark excluding its conflict of law provisions and excluding the United Nations Convention on the International Sale of Goods (CISG); and the exclusive place of jurisdiction is Copenhagen (City), Denmark. MQS may chose as alternative place of jurisdiction any competent court of justice worldwide.
MQS Services Terms and Conditions, valid as of [Date]
MQS will use commercially reasonable efforts to ensure that the Platform will be available for 99.8% of the time, calculated on a calendar monthly basis. "Downtime" (calculated as the difference between 100% of the time in a calendar month and the actual percentage of time during that month that the Platform is available) will exclude unavailability due to (i) scheduled maintenance; (ii) technical malfunctions in the Company's website systems or any other circumstances beyond MQS's reasonable control (for example but not limited to Internet delays, network congestion and ISP malfunctions).
MQS will use commercially reasonable efforts to make available a 24/7 email helpdesk facility.
The Customer must make all requests for Support Services through the helpdesk at [email protected].
MQS will use reasonable endeavours to respond to requests for Support Services made through the helpdesk as swiftly as possible and within the following response times:
*Business Day meaning Monday-Friday except Swiss public national holidays and holidays in the municipality of Zurich City.
MQS will use reasonable endeavours to resolve issues raised by the Customer through the Helpdesk as swiftly as possible taking into account the severity of the incident, it being understood, however, that MQS cannot guarantee resolution times.
Uptime is measured using MQS's automated systems over each calendar month. It is calculated to the nearest minute, based on the number of minutes in the given month (for instance, a 31-day month contains 44'640 minutes). If uptime for any item drops below the threshold for Service Availability (this SLA, Section 1), a penalty will be applied in the form of a credit for the client meaning that the following month's Fee will be reduced accordingly.
The level of penalty will be calculated depending on the number of hours for which the Platform was unavailable, minus the Downtime permitted by this SLA (Section 1).
MQS will reasonably determine, in to which level an issue falls.
Penalties in any month are capped at 50% of the total monthly Fee.
MQS shall have no obligation under the Agreement to provide Support Services in respect of any fault or error caused by:
The Customer acknowledges that from time to time during the Term MQS may apply Upgrades to the Platform, "Upgrade" meaning new versions of, and updates to the Platform or the Application, whether for the purposes of fixing an error, bug or other issue or enhancing the functionality of the Platform or Application. The Customer acknowledges that such Upgrades may, result in changes the appearance and/or functionality of the Platform and/or Application.
MQS will give to the Customer prior written notice of any significant Upgrade to the Platform. Such notice shall include details of the specific changes to the functionality of the Platform and/or Application resulting from the application of the Upgrade.
In addition to the termination rights in Section 9.2 of the MSA, the Customer is entitled to immediately terminate the Agreement if MQS fails to meet the service levels more than five times in a calendar month.
MQS may suspend its Services (including access to the Platform and/or the Application) in SA to carry out scheduled maintenance, such maintenance to be carried out whenever possible outside office hours (as per Section 2.1 above).
MQS must give to the Customer at least 3 calendar days' written notice of a scheduled maintenance, including full details of the expected Downtime.
Data is stored at rest using AES-256 Server Side Encryption. Servers include automatic failover and automated health checks. Physical data storage takes place in Ireland. MQS is free to change physical data storage to any other country within the EU and EEA without any notification requirement to the Customer.
All communication between the Application and internal or external components (e.g. web browsers) are protected by SSL encryption.
Backups are performed on a rolling basis in the following intervals:
Historical backups are stored as follows:
All backups are stored using AES-256 Server Side Encryption.
Access to a running system is controlled via a password controlled login as well as a permissions and invitations system configured by MQS in cooperation with the Customer.
Non-customer access to the running system is restricted to MQS's engineers for the purpose of support, system testing and maintenance.
Upon termination of a customer relationship, the Customer may request the removal of Personal Data of its users. MQS shall remove such Personal Data but shall in event be entitled to keep and use at its free discretion any anonymized data (for example but not limited to user ID, year of birth, gender).