Service Level Agreement (SLA) / Version 2024.1.C
HQE Systems, Inc.
Service Level Agreement – Version 2024.1.C
1.1. Provision of Services 3
1.2 Software Functionality and Use of Client Data 3
2.1 Ownership and Grant of License 5
2.2 Safeguards and Restrictions on Use 5
3.1 Service Commitment 6
3.2 Customer Support 7
4.1 Fee Structure and Payment Obligations 8
4.2 Invoicing and Payment Terms 9
5.1 Recognition of Confidentiality 9
5.2 Obligations Regarding Confidential Information 10
6.1 Duration of Agreement 11
6.2 Termination for Cause 11
6.3 Consequences of Termination 12
6.4 Survival 13
7.1 Entire Agreement 13
7.2 Severability 13
7.3 Governing Law 13
7.4 Dispute Resolution 14
7.5 Notices 14
7.6 Waiver 15
HQE Systems, Inc. (“Provider”), in compliance with the laws of the State of California, agrees to grant the Client non-exclusive access to its proprietary HQE SiRcom SMART Alert Software (“Software”), including any future modifications, updates, enhancements, and related customer support services (“Services”). This grant is subject to the terms and conditions set forth in this Service Level Agreement (SLA), any related Order Forms, or Statements of Work, which are incorporated herein by reference.
The Client’s acceptance of this SLA, either by signing a contract that references this SLA or by using the Provider’s Software Products or Services, constitutes an agreement to adhere to and be bound by the terms and conditions contained within this SLA, including any amendments. The Client acknowledges that the definitive version of this SLA is available online at www.HQESystems.com/SLA. The Provider ensures that the SLA published on this website is the most current version and may be updated periodically to reflect changes in Service provision, legal and regulatory requirements, or the operational policies of the Provider. By continuing to use the Software Products or Services after any such updates, the Client agrees to be bound by such revisions. Updates will be posted on the Provider’s website.
Furthermore, the Provider reserves the right to amend, modify, or discontinue any aspect of the Services, including the name of the Software, at its sole discretion without prior notice to the Client, provided that these changes do not materially diminish the Services’ overall functionality as agreed upon in this SLA. The Client acknowledges and agrees that it is their responsibility to review the SLA periodically to be aware of any such changes.
System Reliability Disclaimer:
The Provider will use commercially reasonable efforts to ensure the reliability and availability of the Software and Services. However, the Provider does not guarantee uninterrupted or error-free operation of the Software under all conditions. System performance may be impacted by factors outside the Provider’s control, including but not limited to network outages, power failures, hardware malfunctions, or third-party system dependencies. The Client acknowledges and agrees that the Provider shall not be held liable for any interruptions, delays, or failures caused by such external factors.
This provision is designed to ensure transparency and mutual understanding between the Provider and the Client regarding the use of the Software and associated Services, with a commitment to adhering to the highest standards of service quality and legal compliance as governed by the laws of the State of California.
The Software is engineered and developed by the Provider to facilitate swift and dependable communication capabilities for the Client, primarily for the objectives of life safety, security, and alerting functions. The Client acknowledges and agrees that the Software is a tool designed to assist in the Client’s operations and is not a substitute for proper planning, management, or decision-making by the Client or its personnel. The Provider does not guarantee that the Software will perform under all circumstances, including but not limited to failures caused by external factors, such as network outages, power disruptions, hardware malfunctions, or third-party systems.
The Client further acknowledges that the functionality of the Software and Services is contingent upon the Client’s provision of accurate, complete, and legally compliant Client Data, as well as the Client’s maintenance of compatible infrastructure and adherence to all operational requirements and recommendations provided by the Provider. The Client is solely responsible for ensuring its personnel are adequately trained in the proper use of the Software.
The Client hereby grants to the Provider a non-exclusive, royalty-free license to use, reproduce, modify, display, and transmit Client Data, including any personal data contained therein, solely to the extent necessary for the Provider to perform the Services under this Agreement. This includes, but is not limited to, the following specific purposes:
The Client warrants that it has obtained all necessary rights, consents, and permissions required under applicable laws and regulations for the provision of Client Data to the Provider and for the use of such Client Data by the Provider as contemplated hereunder.
The Provider does not assume responsibility or liability for:
The Provider disclaims all warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, or non-infringement.
Indemnification Clause
The Client shall indemnify, defend, and hold harmless the Provider, its affiliates, and their respective officers, directors, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to:
This indemnification obligation shall survive the termination or expiration of this Agreement.
Limitation of Liability
Notwithstanding anything to the contrary contained herein, the Provider shall not be liable to the Client or any third party for any indirect, incidental, special, punitive, or consequential damages, including but not limited to damages for loss of profits, goodwill, use, data, or other intangible losses, arising out of or in connection with this Agreement, the use or inability to use the Software or Services, or those resulting from any goods or services purchased or obtained, or messages received or transactions entered into through the Software or Services, whether based on warranty, contract, tort, or any other legal theory, and whether or not the Provider is advised of the possibility of such damages.
The Client acknowledges that the provisions in this section allocate the risks under this Agreement between the Provider and the Client, and the parties have relied on these limitations in determining whether to enter into this Agreement.
The Client shall retain sole and exclusive rights, title, and interest, including all intellectual property rights, in and to all data, information, and material provided to HQE Systems Inc. (“Provider”) or collected, processed, or generated through the utilization of the Software by the Client (“Client Data”). Such retention of rights encompasses, without limitation, the right to all text, graphics, images, audio, video, datasets, and any other forms of data or communication.
Notwithstanding the aforementioned retention of rights, the Client hereby grants to the Provider a non-exclusive, worldwide, royalty-free, and sublicensable (through multiple tiers) license to use, reproduce, adapt, modify, translate, publish, publicly perform, publicly display, store, archive, and transmit Client Data, but solely to the extent necessary for the Provider to perform and deliver the Services contemplated under this Agreement. This license is granted for the primary purpose of enabling the Provider to provide, maintain, and improve the Services and to develop new services. The Provider acknowledges and agrees that except for the limited license granted herein, no rights to Client Data are transferred to the Provider, and all such rights are reserved by the Client.
The Provider shall implement and maintain, throughout the term of this Agreement, a comprehensive information security program that includes appropriate administrative, physical, and technical safeguards designed to:
Such safeguards shall be no less rigorous than those maintained by the Provider for its own information of a similar nature and, in any event, no less rigorous than reasonably required in accordance with applicable law and industry standards. Without limiting the generality of the foregoing, the Provider agrees not to modify, alter, delete, or create derivative works from Client Data without the express written permission of the Client. The Provider further agrees not to disclose, disseminate, make available, or otherwise provide access to Client Data to any third party except as compelled by applicable law or as expressly authorized in writing by the Client.
In the event that the Provider is compelled by law to disclose Client Data, the Provider shall provide the Client with prompt written notice of such requirement (to the extent legally permitted) so that the Client may seek a protective order or other appropriate remedy. For clarity, nothing herein shall require the Provider to violate any applicable law.
Moreover, the Provider shall access Client Data strictly on a “need-to-know” basis and solely to the extent necessary to provide the Services stipulated in this Agreement, to prevent or address technical or service problems, or at the express request of the Client in connection with customer support matters. The Provider shall ensure that its employees, contractors, and agents who have access to Client Data are bound by obligations of confidentiality and data protection that are no less protective of Client Data than those set forth in this Agreement.
Indemnification for Breach
The Provider shall indemnify, defend, and hold harmless the Client and its officers, directors, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, arising out of or resulting from any breach of this Section 2 by the Provider, its employees, contractors, agents, or affiliates.
HQE Systems, Inc. (“Provider”) commits to maintaining the operational availability of the HQE SMART Alert Software (“Software”) for a minimum of 99.9% of the time in any given calendar year (“Service Commitment”). This Service Commitment excludes periods of planned downtime, force majeure events, and other circumstances beyond the Provider’s reasonable control, as outlined below.
Planned Downtime:
Planned downtime necessary for maintenance, upgrades, or other operational activities will be communicated to the Client in advance and scheduled to minimize disruption to the Client’s use of the Software. Notification of planned downtime shall be provided through acceptable communication methods, including email, text, portal updates, or scheduled meetings.
Exclusions from Uptime Calculations:
The calculation of uptime under this Agreement explicitly excludes interruptions caused by:
Force Majeure Clause:
The Provider shall not be held liable for any failure or delay in meeting the Service Commitment or performing any obligations under this Agreement to the extent such failure or delay is caused by a force majeure event, as defined above. In such circumstances:
Acknowledgment of Risk Allocation:
The Client acknowledges and agrees that the Service Commitment reflects a reasonable allocation of risk and accounts for the inherent limitations of Software-dependent systems operating in complex and interconnected environments. The exclusions and limitations set forth in this Section are essential to the Provider’s ability to offer the Services on commercially viable terms.
The Provider agrees to furnish technical support services to the Client in connection with the use, functionality, or troubleshooting of the Software. Such technical support services shall be rendered exclusively on a remote basis by qualified personnel of the Provider and shall be available to the Client under the terms and conditions specified in this Agreement.
Scope of Support:
The scope of technical support services provided hereunder shall include, but not be limited to:
The support services shall not extend to issues outside the original scoped technical requirements of the Agreement, including but not limited to modifications, customization requests deviating from the original specifications, additional training requirements, or clarification of user operations. Such requests may be handled under separate agreements or at additional cost as mutually agreed between the parties.
Support Levels and Response Timelines:
The Provider shall categorize support requests into the following levels, with corresponding response times:
Limitations of Liability:
Notwithstanding any provision to the contrary in this Agreement, the Provider’s liability for any breach of this Section 3, including but not limited to any failure to meet the response timelines or to provide technical support as described herein, shall be limited to the issuance of potential service credits. Under no circumstances shall the Provider be liable for any indirect, incidental, consequential, special, or punitive damages arising out of or related to its obligations under this Section 3, regardless of whether such damages were foreseeable or the Provider has been advised of the possibility of such damages.
The Client shall remit payment to HQE Systems Inc. (“Provider”) for all fees as delineated within the Order Forms, which form an integral component of this Agreement. It is hereby established that: (i) The fee structure is predicated upon the Services procured by the Client as specified within the Order Forms, independent of the actual usage thereof. The Parties acknowledge that the fees reflect a pre-agreed value of the Services based on the anticipated utility rather than the quantum of usage. (ii) All payment obligations under this Agreement are irrevocable, binding, and non-cancellable upon the execution of an Order Form. The Client’s obligation to pay the fees due under this Agreement shall not be contingent on any additional deliverables or performances unless expressly stipulated within an Order Form. (iii) Fees remitted by the Client in consideration for the Services provided under this Agreement are non-refundable except as may be expressly provided in this Agreement or in an applicable Order Form. This non-refundability clause reflects the Parties’ agreement on the allocation of risk and the commitment of resources by the Provider upon the initiation of Services.
The invoicing and payment for the Services rendered by the Provider under this Agreement shall adhere to the following stipulations:
(i) Invoice Issuance: Unless delineated differently within an Order Form, the Provider shall issue invoices for the Services on an annual basis in advance of the service period. Such advance billing is designed to facilitate uninterrupted provision of Services and ensure resource allocation by the Provider in line with the Client’s requirements.
(ii) Initial Invoice Timing: The initial invoice for the Services shall be issued to the Client only after the software has been successfully deployed, the Client has been onboarded, and the Client has signed off on a Certificate of Successful Deployment (“Certificate”). The Certificate shall confirm that the deployment has been completed in accordance with the agreed specifications and standards outlined in this Agreement or related Order Forms.
(iii) Payment Due Date: Each invoice issued under this Agreement shall become due and payable by the Client within thirty (30) days from the date of the invoice. This term is considered reasonable to ensure the smooth administration of payments without causing undue operational disruptions to either Party.
(iv) Late Payments: In the event of late payment by the Client, the Provider reserves the right to impose a late payment fee at the lesser of one and one-half percent (1.5%) per month on the overdue amount or the maximum rate permitted under applicable law. This late payment fee is intended to compensate the Provider for the loss and administrative burden caused by the delay in receiving due payments.
(v) Collection Costs: The Client shall be responsible for all reasonable expenses, including but not limited to attorneys’ fees and other costs, incurred by the Provider in collecting past due amounts under this Agreement.
Indemnification for Non-Payment
Should the Client fail to fulfill its payment obligations under this Section 4, the Client agrees to indemnify, defend, and hold harmless the Provider from any losses, damages, liabilities, costs, claims, and expenses, including reasonable attorneys’ fees, arising directly or indirectly from such non-payment.
Each party acknowledges and understands that in the course of fulfilling its obligations under this Agreement, it may become the recipient (“Receiving Party”) of certain confidential, proprietary, sensitive, or otherwise non-public information pertaining to the other party’s (“Disclosing Party”) business operations, strategies, technology, or financial affairs (“Confidential Information”). This Confidential Information may encompass, but is not limited to, data, formulas, patterns, compilations, programs, devices, methods, techniques, or processes that derive independent economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use.
The Receiving Party hereby commits to the following stipulations regarding the handling of Confidential Information:
(i) Protection and Security: The Receiving Party shall exercise the same degree of care and protection with respect to the Confidential Information of the Disclosing Party that it applies to its own confidential and proprietary information, but in no event shall the Receiving Party use less than a reasonable standard of care. This includes implementing and maintaining robust physical, electronic, and procedural safeguards to ensure the integrity and confidentiality of the Confidential Information, thereby preventing its unauthorized access, use, reproduction, or dissemination.
(ii) Restricted Use and Non-Disclosure: The Receiving Party agrees to use the Confidential Information solely for the purposes of executing its responsibilities and delivering the Services as outlined in this Agreement. Except as expressly authorized under the terms of this Agreement or otherwise permitted in writing by the Disclosing Party, the Receiving Party shall not disclose, reveal, transmit, or otherwise make available any portion of the Confidential Information to any third party. The Receiving Party shall ensure that access to Confidential Information is strictly limited to those employees, contractors, or agents who have a “need to know” in connection with this Agreement and who are bound by confidentiality obligations no less restrictive than those contained herein.
Notification and Handling of Breaches:
In the event of an actual or suspected breach of the confidentiality obligations herein:
Exceptions to Confidential Information
The obligations set forth above shall not apply to information that:
Indemnification for Breach of Confidentiality
In the event of a breach or threatened breach by the Receiving Party of the confidentiality obligations herein, the Disclosing Party shall be entitled to seek equitable relief, including an injunction and specific performance, in addition to all other remedies available at law or in equity, without the necessity of posting any bond or other security. The Receiving Party agrees to indemnify the Disclosing Party for any and all losses, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from any violation of this confidentiality provision.
This Section 5.2 shall survive the termination or expiration of this Agreement.
This Agreement shall become effective on the date it is executed by both parties (“Effective Date”) and shall remain in full force and effect until such time as all subscriptions, access rights, and service provisions granted hereunder have either naturally expired in accordance with their respective terms or have been earlier terminated pursuant to the provisions outlined herein.
(i) Termination for Material Breach: Either party (“Terminating Party”) reserves the right to terminate this Agreement forthwith in the event of a material breach by the other party (“Breaching Party”). A material breach shall include, but is not limited to, failure to perform any obligation required under this Agreement, breach of confidentiality obligations, or failure to make payment when due.
Remedy Period for Provider: In the event of an alleged material breach by the Provider, the Client must provide written notice to the Provider detailing the nature of the breach. Upon receipt of such notice, the Provider shall have thirty (30) days to remedy the identified breach. This period is designed to afford the Provider a reasonable timeframe to address and correct the issue, ensuring continuity of service and adherence to Agreement terms.
Resolution and Continuation: If the Provider successfully remedies the breach within the thirty (30) day period, the remedy shall be deemed satisfactory and the Agreement shall continue in full force and effect. Following such a remedy, the specific breach remedied shall not serve as a basis for termination of this Agreement by the Client.
(ii) Termination for Insolvency: Either party may terminate this Agreement with immediate effect without notice if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors. Such termination shall not relieve the Breaching Party of any obligations incurred prior to the effective date of termination, including the obligation to pay any fees that have accrued but remain unpaid.
Upon termination of this Agreement for any reason:
This Section 6.3 ensures that both parties fulfill their respective obligations upon termination while providing the Provider with additional legal protections against lingering risks and liabilities.
Sections of this Agreement which by their nature should survive termination will remain in effect after the expiration or termination of this Agreement, including but not limited to confidentiality obligations, indemnification obligations, and limitations of liability.
Indemnification for Termination
The Breaching Party shall indemnify and hold harmless the Terminating Party from any and all losses, damages, liabilities, costs, claims, and expenses, including reasonable attorneys’ fees, arising from or related to the Breaching Party’s material breach of this Agreement, which resulted in its termination.
This Agreement, including any and all Exhibits, Order Forms, schedules, addendums, and amendments made in accordance with the terms hereof, constitutes the sole and entire agreement between HQE Systems Inc. (“Provider”) and the undersigned Client with respect to the subject matter contained herein, superseding all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms hereof may be waived only in a written document signed by the party waiving compliance.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of California.
Any dispute, controversy, or claim arising out of or relating to this Agreement, including the breach, termination, or validity thereof (collectively, “Disputes”), shall first be subject to good-faith negotiations between the parties. If the Dispute cannot be resolved within thirty (30) calendar days from the commencement of such negotiations, the parties agree that the Dispute shall be submitted to binding arbitration.
The arbitration shall be conducted exclusively in Temecula, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect, except as expressly modified herein. The arbitration shall be administered by a single arbitrator mutually agreed upon by the parties or, if the parties cannot agree, appointed by the AAA.
The arbitrator’s decision shall be final, conclusive, and binding upon the parties, and judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator shall have no authority to:
The party determined to be at fault in the Dispute shall bear all costs of the arbitration, including, without limitation, all filing fees, administrative costs, arbitrator fees, and reasonable attorneys’ fees and expenses incurred by the non-fault party. If fault cannot be reasonably apportioned, each party shall bear its own respective costs.
The parties expressly waive:
This Section 7.4 shall survive the termination or expiration of this Agreement and shall bind the parties’ successors and assigns.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether similar or not, nor shall such waiver constitute a continuing waiver of any such failure, breach, or default or an automatic waiver of any subsequent failure, breach, or default. By utilizing the Software provided by HQE Systems Inc., the Client hereby legally and fully agrees to the terms and conditions set forth in this Service Level Agreement (SLA), effective upon the commencement of such use. The act of using the Software constitutes the Client’s unconditional acceptance of and adherence to the SLA as outlined by HQE Systems Inc.
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