Sofy Professional Service Terms of Service

EFFECTIVE DATE: September 28, 2022

These Professional Services Terms (these "Professional Service Terms") govern Quantyzd, Inc.’s ("Quantyzd") performance of Professional Services for Customer and are attached to, and made part of, that certain SOFY Testing Service Terms of Service between Quantyzd and Customer.

  1. Definitions.
    1. "Agreement" means the Order together with these Professional Service Terms, the SOFY Testing Service Terms of Service and any additional terms and conditions attached thereto.
    2. "SOFY Testing Service Terms of Service" means those certain SOFY Testing Service Terms of Service attached to or referenced in an Order, and made part of the Agreement.
    3. "Deliverables" means all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Quantyzd in the course of performing the Professional Services, including any items identified as such in the Order.
    4. "Order" means an ordering document executed by the parties that specifies, among other things, a description of the Professional Services to be provided hereunder.
    5. "Professional Services" means the professional services offered by Quantyzd to Customer as set forth in an Order.
  2. Incorporated Terms.  To the extent applicable, the following provisions of the SOFY Testing Service Terms of Service (and all corresponding defined terms) are hereby incorporated into, and made a part of, these Professional Service Terms, except that references to "Services" in such provisions are amended to include "Professional Services" when used herein: Section 4 (Fees, Payments, and Taxes); Section 7(b), (c) and (d) (Intellectual Property; Customer Data); Section 10 (Confidential Information); and Section 11 (Miscellaneous).
  3. Professional Services. Quantyzd will provide to Customer the Professional Services set out in one or more Orders issued by Customer and accepted by Quantyzd.
  4. Customer Responsibilities. Customer will:
    1. Designate one of its employees or agents to serve as its primary contact with respect to the Agreement and to act as its authorized representative with respect to matters pertaining to the Agreement (the "Customer Contract Manager"), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed.
    2. Respond promptly to any reasonable requests from Quantyzd for instructions, information, or approvals required by Quantyzd to provide the Professional Services.
    3. Cooperate with Quantyzd in its performance of the Professional Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable Quantyzd to provide the Professional Services.
    4. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Quantyzd’s provision of the Professional Services.
  5. Limited Warranty and Limitation of Liability.
    1. Quantyzd warrants that it will perform the Professional Services:
      1. in accordance with the terms and subject to the conditions set forth in the respective Order and the Agreement;
      2. using personnel of commercially reasonable skill, experience, and qualifications; and
      3. in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar Professional Services.
    2. Quantyzd’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty will be as follows:
      1. Quantyzd will use commercially reasonable efforts to promptly re-perform the affected Professional Services; provided, that if Quantyzd cannot successfully re-perform such Professional Services within a reasonable time (but no more than 60 days) after Customer’s written notice of such breach, Customer may, at its option, terminate the portion of the Agreement relating to Professional Services by serving written notice of termination in accordance with Section 8(b).  
      2. In the event the portion of the Agreement relating to Professional Services is terminated pursuant to Section 5(b)(i) above, Quantyzd will within 30 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Professional Services not yet performed or Deliverables not yet provided. 
      3. The foregoing remedy will not be available unless Customer provides written notice of such breach within 30 days after delivery of such Professional Services or Deliverables to Customer.
    3. QUANTYZD MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 5(a), ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OR TRADE PRACTICE.
  6. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, "Intellectual Property Rights") in and to all Deliverables (except for any Confidential Information of Customer or customer materials incorporated therein) will be owned by Quantyzd. Quantyzd hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Professional Services during the Term of the Agreement.
  7. Limitation of Liability. IN NO EVENT WILL QUANTYZD BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT QUANTYZD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL QUANTYZD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO QUANTYZD FOR THE PROFESSIONAL SERVICES PURSUANT TO THE APPLICABLE ORDER IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  8. Term and Termination.
    1. Term. The term of these Professional Services Terms begins on the effective date for the Professional Services set forth in any applicable Order and will continue for the term set forth on the Order (or, if no term is listed, until the Professional Services are completed or these Professional Service Terms are terminated in accordance with Section 8(b)) (the "Term").  The parties may extend the Term upon mutual written consent.
    2. Termination.
      1. These Professional Services Terms, and the Professional Services performed hereunder, will terminate immediately upon the termination of the Agreement, unless otherwise agreed upon by the parties in writing.
      2. Quantyzd may terminate these Professional Services Terms and the provision of the Professional Services, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than 30 days after Quantyzd’s delivery of written notice thereof.
      3. Customer may terminate the Professional Services in whole or in part as set forth in Section 5(b)(i) hereof.
      4. Each party may terminate these Professional Services Terms and Quantyzd’s provision of the Professional Services, effective on written notice to the other party, if the other party materially breaches these Professional Service Terms, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
      5. Each party may terminate these Professional Services Terms, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Effect of Expiration or Termination. Upon expiration or earlier termination of these Professional Services Terms, Customer will immediately discontinue use of any Deliverables hereunder and, without limiting Customer’s obligations under Section 10 of the SOFY Testing Service Terms of Service (Confidential Information), Customer will delete, destroy, or return all copies of all Deliverables and certify in writing to Quantyzd that the Deliverables have been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
    4. Survival. This Section 8(d) and Sections 1, 5(b), 5(c), 6, 7, and 8(c) survive any termination or expiration of these Professional Services Terms. No other provisions of these Professional Service Terms survive the expiration or earlier termination of these Professional Services Terms.
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