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Terms and Conditions

Terms and Conditions of Sale

All customer (referred to as “Customer”) orders are governed by these terms and conditions and all additional terms and conditions presented on or accompanying an Equus Computer Systems, Inc. (“Equus”) quotation, order acknowledgment, or invoice (collectively, the “Agreement”). Equus specifically rejects, and Customer disclaims, all provisions in Customer’s purchase orders including associated forms and/or documents. This Agreement shall constitute the entire agreement between Equus and Customer with respect to any Customer orders and the products and/or services provided hereunder (“Products”); provided, however, if Equus and Customer have executed a separate written agreement governing the sale of the Products (“Existing Agreement”), the Existing Agreement will govern.

1. PURCHASE PRICE – The Customer agrees to pay the total purchase price as specified on the Equus invoice which will reflect the Products and pricing as agreed upon in the order placed with Equus. In addition, the Customer agrees to pay any sales or other taxes levied on or measured by such purchase price, or arising from the use of the Products and any parts or maintenance supplied, including without any limitation, any additional sales, use, gross receipts, privilege, excise, VAT, tariffs, import, and localized taxes.

2. PAYMENT TERMS – All payments must be in U.S. Dollars, and be made by check, money order, credit card, electronic funds transfer or such other means as Equus may expressly permit. Do not send cash. Any payment made using a check or draft may not be processed or applied to Customer’s account if it is: postdated; incomplete (such as when a signature is missing); the numeric amount is different than the written amount; or it is not made payable in accordance with the instructions on Customer’s billing statement. For net terms customers, funds are due in bank by the stated due date. Credit Card payments may be subject to additional fees. Customer will be charged the maximum allowed by law for each NSF or canceled check. Interest charges of 18% per annum (0.05% per day) or the maximum permitted by law will be charged for past due account balances. Customer agrees to pay to Equus all costs related to the collection of any sum past due, including but not limited to both internal collection efforts and external collection fees, legal fees, court costs and expenses incurred.

3. DELIVERY – Delivery shall be made FOB Equus shipping dock.

4. INSPECTION – Customer shall inspect the Products upon delivery and immediately notify the carrier of any shipping damage. Customer shall notify Equus of any damage, defects or discrepancies to the Products within 3 business days of receipt of the Products. Any damage, defects or discrepancies reported beyond 3 business days will be subject to Equus’ standard Product warranty terms.

5. LIMITED WARRANTY – Specific Product warranty terms can be found at https://www.equuscs.com/warranty-options-coverages

EQUUS HEREBY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

6. LIMITATION OF LIABILITY –

UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EQUUS BE LIABLE TO CUSTOMER FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, DOWNTIME, WORK STOPPAGE OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, BUSINESS INTERRUPTION, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT OR THE USE OF, OR INABILITY TO USE, THE PRODUCTS, EVEN IF EQUUS HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSSES. THE MAXIMUM, CUMULATIVE LIABILITY OF EQUUS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE PRODUCTS PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNT PAID TO EQUUS FOR THE PRODUCT GIVING RISE TO THE CLAIM, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

7. TITLE AND RISK OF LOSS; PURCHASE MONEY SECURITY INTEREST –

Title and risk of loss or damage to the Products shall pass to Customer at Equus’ shipping dock. Customer hereby grants to Equus, as security for the payment of the purchase price and other amounts payable under this Agreement, a lien on and security interest in and to all of the right, title and interest of the Customer in, to and under the Products (howsoever characterized, including as equipment or inventory), wherever located and whether now existing or hereafter arising or acquired from time to time, and all accessions thereto and replacements or modifications thereof.

8. RETURN FOR CREDIT –

Return of Products for credit is not guaranteed. All requests for return of Products must be made to Equus’ Technical Support Department within 30 days of the original invoice date. If the return is approved, Equus will issue an RMA number to Customer. Products must be received by Equus within 10 days of RMA issuance. Equus reserves the right to refuse returned Products that have been used or that are not packed in the original packaging/box with complete parts, manuals, and accessories included, and that are not received in resaleable condition (at the discretion of Equus) upon receipt by Equus. Any credit issued will be for the purchase price paid for the returned Products on the invoice less shipping and handling, and may be subject to a minimum restocking fee of 20% of the total invoice price plus applicable sales tax. Any Products returned to Equus without an RMA will be considered an unauthorized return and Customer will not receive credit for the Products, and Equus will not ship such Products back to Customer. Customer is solely responsible for backing up the data on the hard drive(s) and any other storage device(s) in the returned Products and removing any confidential, proprietary or personal information (collectively “Information”) as well as its removable media from the returned Products. Equus is not responsible for any such Information, data or removable media.

9. CANCELLATION – Cancellation of any order will be subject to a restocking fee of no less than 20% of the total order amount, plus any cost of Equus’ labor, testing, handling or shipping.

10. NCNR – Equus may designate certain Products as non-cancelable and non-returnable (“NCNR”) and the sale of such Products shall be subject to differing or additional terms and conditions as set forth in a separate NCNR Agreement between the parties, or, if agreed by Equus, as set forth in Customer’s Purchase Order as directed and specified by Equus (the “NCNR Terms”).  The NCNR Terms shall supersede any inconsistent terms and conditions contained herein.

11. FORCE MAJEURE – With the exception of Customer payment obligations, neither party shall have any liability for its failure to perform under this Agreement to the extent such failure arises from causes beyond its reasonable control, including, without limitation, acts of God, failures or delays in transportation, or acts of any governmental authority or agency.

12. GOVERNING LAW; VENUE – This Agreement is made in and shall be governed by the laws of the State of Minnesota, without regard to the choice of law principles of any jurisdiction. Exclusive jurisdiction and venue shall be in the federal and state courts situated in Hennepin County, Minnesota, and Customer waives any objection to the adjudication of disputes in that forum.

13. OFAC REPRESENTATION AND COVENANT – Customer represents that it is in compliance with all laws and regulations administered by OFAC and/or any other governmental entity imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against designated countries (“Embargoed Countries”), regimes, entities, and persons (collectively, “Embargoed Targets”). Customer represents that it is not an Embargoed Target or otherwise subject to any Economic Sanctions Laws. Customer covenants that it will comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, Customer will not (a) directly or indirectly export, re-export, transship, transfer, or otherwise deliver the Products or any portion thereof to an Embargoed Target or (b) broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law.

14. MISCELLANEOUS – Customer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Equus. Any purported assignment, transfer, delegation or subcontract in violation of this section shall be null and void. Waiver by Equus of any provision hereof in one instance shall not constitute a waiver as to any other instance. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. The parties are independent contractors, and no agency, partnership, fiduciary, or joint venture relationship is created by this Agreement. Equus reserves the right to change the terms of this Agreement on a going-forward basis at any time. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement supersedes any prior or contemporaneous agreements or representations, written or oral.

15. PRIVACY POLICY – Equus’ Privacy Policy is available at https://www.equuscs.com/privacy-policy/

This Agreement was last updated on May 16, 2024.

Equus Cloud Services Agreement

Last Modified: November 2, 2023

This Cloud Services Agreement (this “Agreement”) is a binding contract between you, the legal entity identified on the applicable Order Form (“Customer,” “you,” or “your”) and Equus Computer Systems, Inc. dba Equus Compute Solutions (“Equus,” “we,” or “us”). This Agreement governs your access to and use of the Cloud Services and is effective as of the effective date of the applicable Order Form (the “Effective Date”).

You are accepting the terms and conditions of this Agreement by: (a) clicking a box indicating acceptance, (b) signing or otherwise agreeing to an Order Form that references this Agreement, (c) using the Cloud Services, or (d) any other method of indicating your acceptance of this Agreement. If you are accepting this Agreement on behalf of a company or other legal entity, you represent that you have authority to bind such entity to this Agreement. If you do not have such authority or do not agree with the terms and conditions of this Agreement, you may not use the Cloud Services.

1. Definitions.

“Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Cloud Services under the rights granted to Customer pursuant to this Agreement, and (b) for whom access to the Cloud Services has been purchased hereunder.

“Cloud Services” means the services provided by Equus under this Agreement that are detailed on Equus’ website and as may be reflected in the applicable Order Form.

“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Cloud Services.

“Documentation” means Equus’ user manuals, handbooks, and guides relating to the Cloud Services provided by Equus to Customer either electronically or in hard copy form.

“Order Form” means an ordering document or registration form related to the Cloud Services provided by Equus that references this Agreement.

“Equus IP” means the Cloud Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Equus IP includes Aggregated Statistics and any information, data, or other content derived from Equus’ monitoring of Customer’s access to or use of the Cloud Services, but does not include Customer Data.

“Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Cloud Services.

2. Access and Use.

2.1 Provision of Access. Subject to and conditioned on your payment of Fees and your compliance with all the terms and conditions of this Agreement, Equus hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Equus will provide you the necessary passwords and access credentials to allow you to access the Cloud Services.

2.2 Documentation License. Subject to the terms and conditions contained in this Agreement, Equus hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Cloud Services.

2.3 Downloadable Software. Use of the Cloud Services may require or include use of downloadable software. Equus grants you a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software we provide as part of the Cloud Services. Any Third-Party Products that consist of downloadable software are subject to the terms of Section 3.5.

2.4 Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Cloud Services, any software component of the Cloud Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) copy, modify, or create derivative works of the Cloud Services, any software component of the Cloud Services, or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cloud Services or Documentation except as expressly permitted under this Agreement; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Cloud Services, in whole or in part; (d) remove any proprietary notices from the Cloud Services or Documentation; or (e) use the Cloud Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.

2.5 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Equus may monitor Customer’s use of the Cloud Services and collect and compile data and information related to Customer’s use of the Cloud Services to be used by Equus in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Cloud Services (“Aggregated Statistics”). As between Equus and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Equus. You acknowledge that Equus may compile Aggregated Statistics based on Customer Data input into the Cloud Services. You agree that Equus may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.

2.6 Reservation of Rights. Equus reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Equus IP.

2.7 Suspension. Notwithstanding anything to the contrary in this Agreement, Equus may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Cloud Services if: (a) Equus reasonably determines that (i) there is a threat or attack on any of the Equus IP; (ii) Customer’s or any other Authorized User’s use of the Equus IP disrupts or poses a security risk to the Equus IP or to any other customer or vendor of Equus; (iii) Customer or any other Authorized User is using the Equus IP for fraudulent or illegal activities, or otherwise in violation of the AUP; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Equus’ provision of the Cloud Services to Customer or any other Authorized User is prohibited by applicable law; (b) any vendor of Equus has suspended or terminated Equus’ access to or use of any third-party services or products required to enable Customer to access the Cloud Services; or (c) in accordance with Section 5 (any such suspension described in subclause (a), (b), or (c), a “Service Suspension”). Equus shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. Equus shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably possible after the event giving rise to the Cloud Services Suspension is cured. Equus will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.

2.8 Free Trials. From time to time, we may offer free trials of the Cloud Services for a specified period of time (each, a “Free Trial”). Upon your registration on our website and acceptance of your registration by us, we will make the Cloud Services available for you to access under the Free Trial until the earlier of (a) the end of the Free Trial period specified by us, (b) the start date of any paid Cloud Services subscription ordered by you, or (c) termination by us in our sole discretion. If you do not purchase a subscription to the Cloud Services by the end of the Free Trial period, you will not be able to access or retrieve any of the data or content you added to or created with the Cloud Services during the Free Trial period. You acknowledge and agree that this Agreement will govern your use of the Cloud Services during the Free Trial period and any paid subscription to the Cloud Services.

3. Customer Responsibilities.

3.1 Acceptable Use Policy. The Cloud Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Equus’ acceptable use policy (“AUP”) located here, as may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of this Agreement, the AUP, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted within the Cloud Services from time to time.

3.2 Account Use. You are responsible and liable for all uses of the Cloud Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Cloud Services and shall cause Authorized Users to comply with such provisions.

3.3 Customer Data. You hereby grant to Equus a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Equus to provide the Cloud Services to you. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.

3.4 Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Cloud Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.

3.5 Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Cloud Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.

4. Support. This Agreement does not entitle Customer to any support for the Cloud Services.

5. Fees and Payment. Customer shall pay Equus the fees as described on the Order Form (“Fees”) in US dollars without offset or deduction on or before the due date. If Customer fails to make any payment when due, without limiting Equus’ other rights and remedies: (a) Equus may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Equus for all reasonable costs incurred by Equus in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for 10 days or more, Equus may suspend, in accordance with Section 2.7, Customer’s and all other Authorized Users’ access to any portion or all of the Cloud Services until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Equus’ income.

6. Confidential Information. From time to time during the Term, Equus and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) is already in or later comes into the public domain through no fault of the recipient; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (b) to establish a party’s rights under this Agreement, including to make required court filings.

7. Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Cloud Services and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Cloud Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.

8. Limited Warranty and Warranty Disclaimer.

8.1 Equus Warranty. Equus warrants that it provides Cloud Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND EQUUS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

8.2 Customer Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Cloud Services are in compliance with the AUP.

8.3 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.1, THE CLOUD SERVICES ARE PROVIDED “AS IS” AND EQUUS SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EQUUS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EQUUS MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

9. Indemnification.

9.1 Equus Indemnification. Equus shall indemnify, defend, and hold Customer harmless 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 attorneys’ fees (“Losses”), incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Cloud Services in the form provided by Equus, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party’s U.S. patents, copyrights, or trade secrets, provided that Customer promptly notifies Equus in writing of the Third-Party Claim, cooperates with Equus, and allows Equus sole authority to control the defense and settlement of such Third-Party Claim. If such a Third-Party Claim is made or Equus reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit Equus, at Equus’ sole discretion, to (a) modify or replace the Cloud Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for Customer to continue use. If Equus determines that neither alternative is reasonably available, Equus may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and Equus will provide Customer a pro rata refund of any prepaid and unused Fees for such infringing Services or portion thereof. This Section 9.1 sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. This Section 9.1 will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.

9.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Equus’ option, defend Equus and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (a) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; or (b) based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Cloud Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Equus unless Equus consents to such settlement, and further provided that Equus will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

10. Limitations of Liability. IN NO EVENT WILL EQUUS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER EQUUS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EQUUS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO EQUUS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR, IN THE CASE OF A FREE TRIAL, $100.

11. Term and Termination.

11.1 Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the term stated on all Order Forms has expired or has otherwise been terminated. The term of each Order Form will be as set forth on the Order Form.

11.2 Termination. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement (including a violation of the AUP), and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.

11.3 Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) 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; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) 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.

11.4 Effect of Termination. Termination or expiration of an individual Order Form will not be deemed a termination of this Agreement so long as other Order Forms remain in effect. Termination of this Agreement will, however, terminate all outstanding Order Forms. Upon termination of this Agreement, Customer shall immediately discontinue use of the Equus IP. No expiration or termination of this Agreement 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.

11.5 Survival. This Section 11.5, Sections 1, 2.5, 5, 6, 7, 8.3, 9, 10, 11.5, 13, 14, 15, and 16, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination of this Agreement, will survive any such termination.

12. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications or posts within the Cloud Services and/or direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms.

13. Export Regulation. The Cloud Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Cloud Services or the software or technology included in the Cloud Services to, or make the Cloud Services or the software or technology included in the Cloud Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Cloud Services or the software or technology included in the Cloud Services available outside the U.S.

14. U.S. Government Rights. Each of the software components that constitute the Cloud Services and the Documentation is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Cloud Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government customers and their contractors.

15. Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Minnesota. Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota in each case located in Hennepin County, Minnesota, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

16. Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address available at 4400 West 78th Street, Suite 110A, Bloomington, MN 55435, and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Cloud Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.

Equus Cloud Services Acceptable Use Policy

Last Modified: September 12, 2023

This Acceptable Use Policy (“AUP”) describes material and activities that are not allowed in connection with the products, systems, and services (collectively, “Services”) offered by Equus Computer Systems, Inc. dba Equus Compute Solutions (“Equus,” “we,” or “us”). This AUP applies to all users of the Services and is incorporated by reference into any applicable agreement between you and Equus. Capitalized terms used herein, but undefined will have the meaning given to such terms in the Equus Cloud Services Agreement (the “Agreement”). This AUP is not exhaustive, and we reserve the right to take remedial action in connection with materials or activities that are not specifically described below. We also reserve the right to amend, alter, or modify the requirements set forth in this AUP at any time.

Prohibited Uses

You may use the Services only for lawful purposes and in accordance with this AUP. You agree not to use the Services:

  • In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • For the purpose of exploiting, harming, or attempting to exploit or harm, minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
  • To send, knowingly receive, upload, download, use, or re-use any material which violates the rights of any individual or entity established in any jurisdiction.
  • To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
  • To impersonate or attempt to impersonate another user, or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Equus or users of the Services or expose them to liability.

 

Additionally, you agree not to:

  • Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
  • Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any Services traffic or resources available on the Services.
  • Use any manual process to monitor or copy any Services traffic or resources available on the Services or for any other unauthorized purpose without our prior written consent.
  • Use any device, software, or routine that interferes with the proper working of the Services.
  • Introduce any viruses, trojan horses, worms, logic bombs, or other software or material which is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services or any server, computer, database, or other resource or element connected to the Services. 
  • Violate, attempt to violate, or knowingly facilitate the violation of the security or integrity of the Services.
  • Otherwise attempt to interfere with the proper working of the Services.

 

Content Standards

You agree not to use the Services to send, knowingly receive, upload, download, use, or re-use any material which:

  • Contains any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
  • Promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
  • Infringes any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
  • Violates the legal rights (including the rights of publicity and privacy) of others or contains any material that could give rise to any civil or criminal liability under applicable laws or regulations.
  • Is likely to deceive any person.
  • Promotes any illegal activity, or advocates, promotes, or assists any unlawful act.
  • Causes annoyance, inconvenience, or needless anxiety or is likely to upset, embarrass, alarm, or annoy any other person.
  • Impersonates any person, or misrepresents your identity or affiliation with any person or organization. 
  • Involves commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
  • Gives the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

 

Monitoring and Enforcement

Equus, in its sole discretion, will determine whether your conduct is in compliance with this AUP. We have the right to:

  • Monitor your use of the Services for any purpose in our sole discretion and as we see fit.
  • Take any action we deem necessary or appropriate in our sole discretion if we believe a user’s conduct violates this AUP, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Equus.
  • Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
  • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services. 
  • Terminate or suspend your access to all or part of the Services for any violation of this AUP.
 

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone who accesses or uses the Services.