Last Updated: August 1, 2023
These Terms of Service (“Agreement”) is entered into by and between Factored Quality a business with an address 411 Post Road Drive, Austin Texas 78704 (“Factored Quality”) and the entity or person placing an Order for Services or accessing the Platform (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any Orders. Certain capitalized terms are defined in the Definitions Section and others are defined contextually in this Agreement.
As used in this Agreement, “you” or “Customer” means the entity you represent in accepting this Agreement or, if that does not apply, you individually. If you are accepting this Agreement on behalf of your employer or another entity, you represent and warrant that: (A) you have full legal authority to bind your employer or such entity to this Agreement; (B) you have read and understand this Agreement; and (C) you agree to this Agreement on behalf of the party you represent. If you do not have the legal authority to bind your employer or the applicable entity, please do not click “I agree” (or similar button or checkbox that is presented to you).
If you are not eligible, or do not agree to this Agreement, then you do not have our permission to access the Platform or receive the Services. YOUR USE OF THE PLATFORM, AND FACTORED QUALITY’S PROVISION OF THE PLATFORM AND SERVICES TO YOU,CONSTITUTES AN AGREEMENT BY FACTORED QUALITY AND BY YOU TO BE BOUND BY THESE TERMS.
“Affiliate” means an entity directly or indirectly owned or controlled by a party, where“ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Customer Data” means any data, content, or materials that Customer (including its Users) submits to the Platform, including from Third-Party Platforms.
“Customer Materials” means materials, systems, and other resources that Customer provides to Factored Quality in connection with the Platform and the Services.
“Documentation”means Factored Quality’s usage guidelines, or technical documentation provided in conjunction with the Platform or the Services and the performance of theServices by the Professionals.
“Laws” means all relevant local, state, federal and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of technical or personal data.
“Order”means a booking order for the provision of the Services from Factored Quality, detailing the services the Professionals will be providing.
“Platform” means Factored Quality’s proprietary cloud service, as identified in this Agreement, and as modified from time to time. The Platform includes the Documentation but does not include Third-Party Platforms
"Professionals”means the individuals providing Services on behalf of Factored Quality.
“Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (c) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (d) other information subject to regulation or protection under specific Laws such as theChildren’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (e)social security numbers, driver’s license numbers or other government ID numbers or (f) any data similar to the above protected under foreign or domestic Laws.
“Services” means the professional services provided to Customer by Factored Quality, including supply chain and quality control management services, product testing and compliance services, and inspection services.
“Third-Party Platform” means any platform, add-on, service, or product not provided by Factored Quality that Customer elects to integrate or enable for use with the Platform.
“Usage Data” means Factored Quality’s technical logs, data, and learnings about Customer’s use of, and feedback regarding, the Platform and the Services, including data collected by Factored Quality in connection with the provision of Services, but excluding Customer Data.
“User” means any employee or contractor of Customer or its Affiliates that Customer allows to use the Platform on its behalf.
1. Overview. The Platform permits Factored Quality customers to manage and book Services. To receive access to the Platform, you must meet Factored Quality’s eligibility criteria and register for an account.
1.1. Eligibility. By agreeing to this Agreement, you represent and warrant to Factored Quality that: (a) you have not previously been suspended or removed from the Platform; and (b) your registration and your use of the Platform and Services follows any and all applicable laws and regulations. Factored Quality’s competitors are prohibited from accessing the Platform, or using the Services, unless granted prior written consent by Factored Quality. The individual accepting this Agreement on your behalf represents and warrants that they are at least 18years old and have authority to bind you to this Agreement and you agree to be bound by this Agreement.
1.2. Account and Registration. To receive access to the Platform, you will need to register for an account. When you register for an account, you may be required to provide Factored Quality with some information about yourself, such as Customer’s full legal name, address, phone number, email address, as well as other contact and business-related information such as the type of the business and the products offered by Customer. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and your password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us by mailing us at email@example.com
1.3. Accuracy of Information. Factored Quality relies on the accuracy of the information you provide to refer the Professionals most appropriate to Customer. Factored Quality has no responsibility for any incorrect, false, or misleading information provided by you or any User for any decision you make based on the provided information including, regarding booking a Professional through the Platform and/or receiving the Services.
2. The Platform.
2.1. Permitted Use. During the term of this Agreement, Customer may access and use the Platform only for its internal business purposes in connection with booking and managing Services and in accordance with the Documentation and this Agreement.
2.2. Users. Only Users may access or use the Platform. Each User must keep its login credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and actions taken through their accounts (excluding misuse of accounts caused by Factored Quality’s breach of this Agreement). Customer will promptly notify Factored Quality if it becomes aware of any compromise of its User login credentials.
2.3. Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a)provide access to, distribute, sell or sublicense the Platform to a third party,(b) use the Platform on behalf of, or to provide any product or service to, third parties, (c) use the Platform to develop a similar or competing product or service, (d) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Platform, except to the extent expressly permitted by Law (and then only with prior notice to Factored Quality), (e) modify or create derivative works of the Platform or copy any element of the Platform, (f) remove or obscure any proprietary notices in the Platform, (g) publish benchmarks or performance information about the Platform, (h) interfere with the Platform’s operation, circumvent its access restrictions or conduct any security or vulnerability test of the Platform or (i) transmit any viruses or other harmful materials to the Platform.
3. Customer Data.
3.1. DataUse. Customer grants Factored Quality thenon-exclusive, worldwide right to use, copy, store, transmit, display, modify,reproduce, disclose, and create derivative works of Customer Data, but only asnecessary to provide the Platform and/ or the Services toCustomerunder this Agreement.
3.2. Security. Factored Quality uses reasonable technical and organizational measures designed to protect the Platform and Customer Data.
3.3. Personal Data. The parties agree that no personal identifying information will be shared through the Platform.
3.4. Location. Factored Quality may store and process Customer Data in the United States or in other countries as approved or directed by Customer.
4. Customer Obligations.
4.1. Customer Data. Customer is responsible for its Customer Data, including its content and accuracy, and agrees to comply with Laws in using the Platform. Customer represents and warrants that it has made all disclosures and has all rights, consents, and permissions necessary to use its Customer Data with the Platform and grant FactoredQuality the rights in Section 3.1 (Data Use), all without violating or infringing Laws, third-party rights (including intellectual property, publicity, or privacy rights) or any terms or privacy policies that apply to the CustomerData.
4.2. Safety and Assistance. Customer must maintain a safe and hazard-free environment within the premises in which the Services is to be provided, and hereby represents and warrants that Professionals will be able to perform the Services free of any risk of physical harm. In addition, if the Services require any assistance from Customer, then Customer shall provide all reasonable assistance requested by Factored Quality. If Customer does not provide such assistance, then Factored Quality shall not be responsible for providing any affected Services unless and until Customer provides the requested assistance.
4.3. Prohibited Uses. Customer must not use the Platform with Prohibited Data. Customer acknowledges that the Platform is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Factored Quality is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Factored Quality has no liability for Prohibited Data.
5. Suspension from the Platform and Cancellation of Orders. Factored Quality may suspend Customer’s access to the Platform, cancel any pending Order or halt the provision of Services if Customer breaches Section 2.3 (Restrictions) or Section 4 (Customer Obligations), if Customer’s account is 30 days or more overdue, if Customer’s actions risk harm to others or the security, availability or integrity of the Platform, Professionals or Services. Where practicable, Factored Quality will use reasonable efforts to provide Customer with prior notice of the suspension. Once the issue requiring suspension is resolved, Factored Quality will promptly restore Customer’s access to the Platform in accordance with this Agreement, or resume the provision of the Services, as appropriate.
6. Third-Party Platforms. Customer may choose to use the Platform with Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Factored Quality does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability or how the Third-Party Platforms or their providers use Customer Data. If Customer enables a Third-Party Platform with the Platform, Factored Quality may access and exchange Customer Data with the Third-Party Platform on Customer’s behalf.
7. The Services. Any booked Services is as described in the relevant Order. Customer will give Factored Quality timely access to Customer Materials reasonably needed for the Services, and if Customer fails to do so, Factored Quality’s obligation to provide the Services will be excused until access is provided. Factored Quality will use Customer Materials only for purposes of providing Services. Customer may use the deliverables only as part of its authorized use of the Services, subject to the same terms as for the Services in Section 2 (The Platform) and Section 4 (Customer Obligations).
8. Commercial Terms.
8.1. Fees and Taxes. Except as otherwise set forth in an Order, Factored Quality will charge Customer the fees for Services (including cancellation fees) set forth on the pricing page provided on the Platform. Except as otherwise set forth in an Order, fees are invoiced on a monthly basis, and all fees and expenses are due within 30 days of the invoice date. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees and expenses are exclusive of Taxes (as defined below) and are non-refundable except as set out in Section 9.2 (Warranty Remedy).Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than Factored Quality’s income tax.
8.2. Affiliate Orders. An Affiliate of Customer may enter its own Order(s) as mutually agreed with Factored Quality. This creates a separate agreement between the Affiliate and Factored Quality incorporating this Agreement with the Affiliate treated as “Customer”. Neither Customer nor any Customer Affiliate has any rights under each other’s agreement with Factored Quality, and breach or termination of any such agreement is not breach or termination under any other
9. Warranties and Disclaimers.
9.1. Limited Warranty. Factored Quality warrants to Customer that Factored Quality will perform the Services in a professional and workmanlike manner.
9.2. WarrantyRemedy.If Factored Quality breaches Section 9.1(Limited Warranty) and Customer makes a reasonably detailed warranty claimwithin 30 days of discovering the issue with respect to the Platform or ofreceipt of the Services, then Factored Quality will use reasonable efforts tocorrect the non-conformity. This procedure is Customer’s exclusive remedy and FactoredQuality’s entire liability for breach of the warranties in Section 9.1. Thesewarranties do not apply to (a) issues caused by misuse or unauthorizedmodifications, (b) issues in or caused by Third-Party Platforms or otherthird-party systems or (c) Trials and Betas or other free or evaluation use.
9.3. Disclaimers. Except as expressly provided in Section 9.1 (Limited Warranty), the Platform, Services, and all related Factored Quality services are provided “AS IS”. Factored Quality and its suppliers make no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Factored Quality does not warrant that Customer’s use of the Platform, or reception of the Services will be uninterrupted or error-free, that Factored Quality will review Customer Data for accuracy, that it will maintain Customer Data without loss, or that any electronic communication, or any attachments thereof, be unencrypted. Factored Quality solely facilitates Customer’s receipt of Services from Professionals and provides information resulting from those Services, and is not responsible for any decisions that Customer makes in connection with its receipt of Services, including the decision to commercialize any products. Factored Quality is not liable for delays, failures, or problems inherent in use of theInternet and electronic communications or other systems outside Factored Quality’s control, including for damage that may be caused due to network security failures or interception by third parties. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.
10. Term and Termination.
10.1. Term. This Agreement will start on the Effective Date and, unless terminated earlier in accordance with this Agreement, will continue until all Orders have expired or been terminated. The initial term of each Order will begin on the effective date specified in the Order and will continue, unless otherwise terminated in accordance with this Agreement, until end of the subscription term specified in that Order. Thereafter, each order will automatically renew for additional periods of the same duration as the initial term unless terminated at least 30 days before commencement of the then-current term or otherwise terminated in accordance with this Agreement.
10.2. Effect of Termination. Upon expiration or termination of this Agreement or an Order, Customer’s access to the Platform will cease, other than limited use of the Platform to exportCustomer Data as described in Section 3.5 (DataExport). At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’sConfidential Information (excluding Customer Data, which is addressed inSection 3.5).Customer Data and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.
10.3. Survival. These Sections survive expiration or termination of this Agreement: 2.3 (Restrictions), 3.5 (Data Export), 4 (Customer Obligations), 8.2 (Fees and Taxes), 9.3 (Disclaimers), 10.3 (Effect of Termination), 10.4 (Survival), 11 (Ownership), 12 (Usage Data), 13 (Limitations of Liability), 14 (Indemnification), 15 (Confidentiality), 16 (Required Disclosures), 19 (General Terms) and 20 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
11. Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Factored Quality’s use rights in this Agreement, between the parties Customer retains all intellectual property and other rights in Customer Data and Customer Materials provided to Factored Quality. Except for Customer’s use rights in this Agreement, Factored Quality and its licensors retain all intellectual property and other rights in the Platform, any deliverables related to the Services and related Factored Quality technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Factored Quality. If Customer provides Factored Quality with feedback or suggestions regarding the Platform, Services or other Factored Quality offerings, Factored Quality may use the feedback or suggestions without restriction or obligation.
12. Usage Data. Factored Quality may collect Usage Data and use it to operate, improve and support the Platform, Services and for other lawful business practices, such as analytics, benchmarking, and reports, which, subject to privacy and applicable regulatory restrictions, maybe published publicly. However, Factored Quality will not disclose Usage Data externally, including in benchmarks or reports, unless it has been (a)de-identified so that it does not individually identify Customer, its Users, or any other person and (b) aggregated with usage data across other Factored Quality customers.
13. Limitations of Liability.
13.1. Consequential Damages Waiver. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.
13.2. Liability Cap. Except for Excluded Claims, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Factored Quality during the prior 12 months under this Agreement.
13.3. Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Sections 2.3 (Restrictions) or 4 (Customer Obligations), (b) either party’s breach of Section 15 (Confidentiality)(but excluding claims relating to Customer Data) or (c) amounts payable to third parties under Customer’s obligations in Section 14 (Indemnification).
13.4. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 13 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
14.1. Scope. Customer will indemnify, defend, and hold harmless Factored Quality from and against any third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of orin connection with any Customer Data, Customer Materials, Customer's products, or Customer’s breach or alleged breach of Section 4 (Customer Obligations).
14.2. Procedures. Customer’s obligations in this Section 14 are subject to receiving (a) prompt notice of the claim (but in any event notice insufficient time for Customer to respond without prejudice), (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim and (c) all reasonably necessary cooperation of Factored Quality at Customer’s expense. Customer may not settle any claim without Factored Quality’s prior consent if settlement would require Factored Quality to admit fault or take or refrain from taking any action. Factored Quality may participate in a claim with its own counsel at its own expense.
15.1. Definition.“Confidential Information” means information disclosed to the receiving party under this Agreement, through thePlatform or in the course of provision of the Services, that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Factored Quality’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Platform or Services. Customer’s Confidential Information includes Customer Data and any non-public supply chain-related information that Customer provides to Factored Quality.
15.2. Obligations. As the receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in thisAgreement, including Section 3.1 (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees having a legitimate need to know. The receiving party may disclose Confidential Information to agents, contractors, other representatives and third parties (including, for Factored Quality, the subcontractors referenced in Section 20.10) having legitimate need to know, provided the disclosing party grants its’ prior written consent. Confidential Information disclosed must be shared provided the receiving party remains responsible for said recipient’s compliance with this Section 15 and they are bound to confidentiality obligations no less protective than this Section 15.
15.3. Exclusions.These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.
15.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 15.
16. Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
17. Trials and Betas. If Customer receives access to the Platform or Platform features on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Factored Quality (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that Factored Quality may never release, and their features and performance information are Factored Quality’s Confidential Information. Notwithstanding anything else in this Agreement, Factored Quality provides no warranty, indemnity or support for Trials and Betas and its liability for Trials and Betas will not exceed US$50.
18. Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by Laws. However, Factored Quality may include Customer and its trademarks in Factored Quality’s customer lists and promotional materials but will cease further use at Customer’s written request.
19.1. Modifications to Agreement. Factored Quality may modify this Agreement from time to time with notice to Customer. Modifications take effect at the effective date of Customer’s next Order unless Factored Quality indicates an earlier effective date. If Factored Quality requires modifications with an earlier effective date and Customer objects, Customer’s exclusive remedy is to terminate this Agreement with notice to Factored Quality. To exercise this termination right, Customer must notify Factored Quality of its objections within 30 days after Factored Quality’s notice of the modified Agreement. Once the modified Agreement takes effect Customer’s continued use of the Platform constitutes its acceptance of the modifications. Factored Quality may require Customer to click to accept the modified Agreement.
20. General Terms.
20.1. Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
20.2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of Texas and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. In the event a dispute arises between the parties hereto arising out of or in connection with or with respect to this Agreement or any breach thereof, such dispute shall be determined and settled by arbitration in Austin, Texas in accordance with the rules of theAmerican Arbitration Association ("AAA"). The award rendered thereon by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section 20.2 shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
20.3. No Support. We are under no obligation to provide support for the Platform. In instances where we may offer support, the support will be subject to published policies.
20.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
20.5. Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested), (c) one day after dispatch if by a commercial overnight delivery service or (d) upon delivery if by email. If to Factored Quality, notice must be provided to 411 Post Road Drive Austin, TX 78704. If to Customer, Factored Quality may provide notice to the address Customer provided at registration. Either party may update its address with notice to the other party. Factored Quality may also send operational notices to Customer by email or through the Platform.
20.7. Amendments. Except as otherwise provided herein, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Factored Quality. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Factored Quality; any of these Customer documents are for administrative purposes only and have no legal effect.
20.8. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of thisAgreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.
20.9. Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.
20.10. Subcontractors. Factored Quality may use subcontractors and permit them to exercise Factored Quality’s rights, but Factored Quality remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
20.11. Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.
20.12. Export. Customer agrees to comply with all relevant U.S. and foreign export and import Laws in using the Platform. Customer (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Platform in violation of any U.S. export embargo, prohibition or restriction and (c) will not submit to the Platform any information controlled under the U.S. International Traffic in Arms Regulations.