HQE Systems, Inc.
Service Level Agreement – Version 2024.1.B
1. Services
1.1 Provision of Services
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 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.
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. 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.
1.2 Software Functionality and Use of Client Data
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. It is intended to leverage, process, and utilize the Client’s data (“Client Data”) in the performance of its functionalities. The Client acknowledges and agrees that the use of the Software and the Services hereunder shall be contingent upon the Client’s provision of Client Data as well as the accuracy, completeness, and legality of such Client Data.
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:
Enhancing Software functionality and performance.
Improving the overall effectiveness of the overall system to help improve management performance across clients.
Performing data analysis to improve service offerings.
Addressing and resolving technical support issues.
Complying with legal obligations, regulatory requirements, and court orders.
The Client further 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 any responsibility or liability for the accuracy, completeness, reliability, or timeliness of the communications facilitated through the use of the Software. The Provider disclaims all warranties, express or implied, as to the merchantability, fitness for a particular purpose, or non-infringement of the Software. Furthermore, the Provider shall not be liable for any claims, damages, losses, or liabilities arising from or related to the Client’s failure to comply with the requirements set forth in this section, including without limitation any claims relating to the infringement of third-party intellectual property rights or any claims asserting violations of applicable data protection laws.
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 the Client’s use of the Software or Services, the Client’s breach of this Agreement, or the Client’s violation of any law or the rights of a third party, including but not limited to intellectual property rights and privacy rights. 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. This section detailing the provision of services and the functional use of the Software by the Client establishes a foundational understanding of the rights and responsibilities of both parties while embedding protective measures for HQE Systems Inc.
2. Data Use and Ownership
2.1 Ownership and Grant of License
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.
2.2 Safeguards and Restrictions on Use
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:
Ensure the security and confidentiality of Client Data.
Protect against any anticipated threats or hazards to the security or integrity of Client Data.
Protect against unauthorized access to or use of Client Data that could result in substantial harm or inconvenience to the Client or any data subject.
Ensure the proper disposal of Client Data.
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.
3. Service Levels
3.1 Service Commitment
HQE Systems Inc. (“Provider”) hereby 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”), excluding periods of planned downtime necessary for maintenance, upgrades, or similar activities, which will be communicated to the Client in advance and scheduled to minimize impact on the Client’s use of the Software. The specific parameters governing planned downtime, including but not limited to the method of notification, scheduling, and duration, shall be delineated in communications (email, text, portal, and meetings are all acceptable forms of communication).
3.2 Customer Support
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 by qualified personnel of the Provider and shall be available to the Client under the terms and conditions specified in the contract. The scope of technical support services provided hereunder shall include, but not be limited to, assistance with the configuration, use, and customization of the Software; resolution of technical issues affecting the operation of the Software; and guidance regarding best practices for maximizing the efficiency and effectiveness of the Software.
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 Service Commitment 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.
4. Fees and Payment
4.1 Fee Structure and Payment Obligations
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.
4.2 Invoicing and Payment Terms
The invoicing and payment for the Services rendered by the Provider under this Agreement shall adhere to the following stipulations: (i) 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) Each invoice issued under this Agreement shall become due and payable by the Client within thirty (30) days from the date of the invoice, a term that is considered reasonable to ensure the smooth administration of payments without causing undue operational disruptions to either Party. (iii) 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. (iv) The Client shall be responsible for all reasonable expenses (including but not limited to attorneys’ fees) 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.
5. Confidentiality
5.1 Recognition of Confidentiality
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.
5.2 Obligations Regarding Confidential Information
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 typically 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.
Exceptions to Confidential Information
The obligations set forth above shall not apply to information that:
Was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party;
Was known to the Receiving Party without confidentiality restrictions at the time of disclosure as demonstrated by written records;
Is disclosed with the prior written approval of the Disclosing Party;
Is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information;
Becomes known to the Receiving Party without confidentiality restrictions from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or
Is required to be disclosed pursuant to a regulation, law, court order, or similar legal process, provided that the Receiving Party gives prompt written notice to the Disclosing Party of such requirement prior to disclosure and assistance in obtaining an order protecting the information from public disclosure.
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.
6. Term and Termination
6.1 Duration of 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.
6.2 Termination for Cause
(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.
6.3 Consequences of Termination
Upon termination of this Agreement for any reason:
Each party shall return or, at the Disclosing Party’s request, destroy the Confidential Information of the other party and certify in writing to the other party that it has complied with the requirements of this provision.
The Client shall immediately cease all use of the Software and Services and ensure that its users do likewise.
Any sums owed by the Client to the Provider under this Agreement up to and including the date of termination shall become immediately due and payable.
Termination of this Agreement shall not affect any rights, obligations, or liabilities of either party that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
6.4 Survival
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.
7. General Provisions
7.1 Entire Agreement
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.
7.2 Severability
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.
7.3 Governing Law
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.
7.4 Dispute Resolution
Any disputes arising out of or related to this Agreement shall be resolved first through good-faith negotiations between the parties. If the dispute cannot be resolved through negotiation, the parties agree to submit the dispute to binding arbitration. The arbitration shall be conducted in Temecula, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, except as modified herein. The arbitrator’s decision shall be final and binding on the parties, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
7.5 Notices
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.
7.6 Waiver
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.
