Quiq Terms of Service – Agreements dated before December 1, 2019
The current Terms of Service can be found here.
PLEASE READ THE QUIQ TERMS OF SERVICE (“AGREEMENT”) BEFORE LOGGING IN OR USING THE HOSTED SOFTWARE (AS DEFINED BELOW). THIS IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND QUIQ INC. (“QUIQ”). BY ACCEPTING ELECTRONICALLY, LOGGING IN OR USING THE HOSTED SOFTWARE, YOU ACCEPT AND AGREE TO COMPLY WITH ALL TERMS AND CONDITIONS OF THE AGREEMENT. THIS AGREEMENT GOVERNS YOUR USE OF THE HOSTED SOFTWARE, UNLESS YOU ARE SUBJECT TO QUIQ’S WRITTEN SOFTWARE AS A SERVICES AGREEMENT. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE TERMS OF QUIQ’S WRITTEN SOFTWARE AS A SERVICES AGREEMENT, THE WRITTEN SOFTWARE AS A SERVICES AGREEMENT SHALL GOVERN.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IN SUCH EVENT, THE TERM “YOU” SHALL INCLUDE SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE HOSTED SOFTWARE.
QUIQ RESERVES THE RIGHT TO CHANGE THE AGREEMENT IN ITS DISCRETION, PROVIDED HOWEVER, QUIQ WILL PROVIDE NOTICE OF ANY CHANGES. IF YOU DO NOT AGREE WITH A CHANGE IN THIS AGREEMENT, YOU MUST WITHIN THIRTY DAYS OF NOTICE OF THE CHANGE FROM QUIQ, STOP USING THE HOSTED SOFTWARE. CONTINUED USE OF THE HOSTED SOFTWARE AFTER NOTICE OF CHANGES FROM QUIQ WILL BE DEEMED YOUR ACCEPTANCE TO ANY CHANGES IN THE AGREEMENT. THIS AGREEMENT WILL GOVERN ALL UPDATES AND UPGRADES TO THE HOSTED SOFTWARE.
Each party agrees as follows:
- QUIQ MESSAGING AND SERVICES. This Agreement and an applicable order form, trial registration webform submission or purchase webform submission (each an “Order Form”) provide You access to Quiq’s cloud-based hosted software and related services (“Hosted Software”). Quiq will provide this Hosted Software through the web from its cloud-based hosting environment.
- USE OF HOSTED SOFTWARE.
- Grant of Rights. Upon Quiq’s acceptance of an Order Form and for the duration of the Order Term, Quiq grants You a non-exclusive, non-assignable, royalty-free, worldwide limited right to use the Hosted Software solely for Your business operations. You may make the Hosted Software available for the use described within, to Your employees, agents, contractors (collectively an “Authorized End User”), and those individuals or entities that will interact with using the Hosted Software (collectively “End Users”). Each Authorized End User must be registered with a unique user name; no two persons may register or use the Hosted Software as the same registered Authorized End User. You are responsible for each Authorized End User’s compliance with the Agreement. Quiq will host the Hosted Software, has no delivery obligations and will not ship copies of the Quiq programs to You as part of the Hosted Software.
- Order Forms. This Agreement contemplates one or more Order Forms for the Hosted Software, and each Order Form will describe the Hosted Software ordered in more detail.
- Support and Availability. Quiq will provide customer support (“Support”) for the Hosted Software as part of Your Hosted Software, as detailed at: https://quiq.com/sla, which terms are incorporated into this Agreement and may be changed from time to time as long as there is no material reduction in the level of support. Quiq targets an availability of the Hosted Software at 99.5% measured monthly (“Uptime Target”), excluding Maintenance Windows and problems with the availability of the Hosted Software caused by You or third party systems or technology beyond the reasonable control of Quiq. If the Hosted Software fails to meet the Uptime Target, You will notify Quiq within thirty days of the month when the Uptime Target was missed, and as Quiq’s sole obligation and Your sole remedy, Quiq will provide You with a one-month extension to use the Hosted Software under this Agreement, to begin immediately at the expiration of the then current Order Term. For purposes of this subsection, Maintenance Window means the Hosted Software is unavailable due to support by Quiq or its third party hosting partner, provided Quiq gives You notice of the maintenance at least forty-eight hours before it starts.
- Security.Quiq will maintain and enforce reasonable technical, administrative, and physical security procedures with respect to its access and maintenance of Customer and End User data transmitted through the Hosted Software, and to safeguard against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of such End User data (a “Security Incident”). In the event of a confirmed Security Incident, Quiq will provide You notice within twenty-four hours. Quiq will thereafter promptly provide You with notice of Quiq’s remediation plan.
- Feedback.You shall, and hereby do, grant Quiq a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Hosted Software any suggestions, enhancement requests, recommendations or other feedback provided by You, Your Authorized End Users or Your End Users relating to the Hosted Software.
- PAYMENT TERMS.
- Fees. You must pay all fees that are due as set forth in the Order Form, plus applicable transaction based taxes.
- Expenses. With approval in advance, You will reimburse Quiq for all standard and reasonable travel and related expenses, for any on-site meetings. You agree to pay expense reimbursements within 30 days of the date of invoice for such expenses.
- WARRANTY/SERVICE LEVEL AGREEMENT and REMEDY.
- Limited Warranty. Quiq warrants to You that the Hosted Software will perform materially in accordance with its Documentation, provided that Quiq reserves the right to make changes to the Hosted Software, however the functionality of the Hosted Software as set forth in the Order Form and Documentation will not materially decrease during an annual term.
- Limited Remedy and Disclaimer. Your exclusive remedy and Quiq’s sole obligation for breach of the warranty will be for Quiq to correct the deficient Hosted Software that cause the breach of warranty, or if Quiq cannot substantially correct the breach in a commercially reasonable manner, You may terminate the applicable Order Form in accordance with Section 8(b) and Quiq will refund all fees prepaid to Quiq under such Order Form for unused Hosted Software. QUIQ DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE QUIQ TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE HOSTED SOFTWARE, QUIQ DOES NOT GUARANTEE THAT THE HOSTED SOFTWARE CANNOT BE COMPROMISED.
- MUTUAL CONFIDENTIALITY.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Disclosing Party) to the other party (Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Quiq’s Confidential Information includes the Hosted Software, the Documentation, the terms of this Agreement, all Order Forms and any Scope of Works (SOWs).
- Protection of Confidential Information. The Receiving Party must use the same degree of care to protect the Confidential Information that it uses to protect its confidential information and in no event less than reasonable care, and not disclose or use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations within the scope of this Agreement. The Receiving Party must limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party with substantially similar confidentiality terms. Any breach by Receiving Party of the Disclosing Party’s Confidential Information could cause irreparable injury or harm to the Disclosing Party. The Disclosing Party may seek a court order to stop any breach or avoid any future breach.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will reasonably endeavor to provide Discloser with advance notice to seek a protective order.
- PROPRIETARY RIGHTS.
- Reservation of Rights by Quiq. The Hosted Software and other technologies and materials developed or provided by Quiq under this Agreement are the proprietary property of Quiq and its licensors. Quiq grants no rights unless expressly provided in this Agreement.
- Your Data. All uploaded data under Your account remains the sole property of You. You grant Quiq a non-exclusive term license to use, host, modify, copy, and share with authorized third parties, Your data for purposes of Quiq performing under this Agreement.
- EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
- Exclusion of Certain Damages. NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED MATERIAL) ARISING UNDER OR relating TO this agreement AND ALL ORDERS and SOWs.
- Limitation of Liability. EXCEPT FOR QUIQ’S INDEMNIFICATION OBLIGATIONS, QUIQ’s MAXIMUM LIABILITY FOR ALL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT AND ALL ORDERS (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY YOU TO QUIQ UNDER SUCH RELEVANT ORDER FORM DURING THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES.
- TERM, TERMINATION AND SUSPENSION OF HOSTED SOFTWARE.
- Term. This Agreement continues for the duration of all Order Forms (“Term”). Upon the end date of the Order Term, Your rights to access or use the Hosted Software shall terminate.
- Mutual Termination for Material Breach. In the event of a material breach of this Agreement, the non-breaching party shall provide written notice to the breaching party. The breaching party will have thirty days to cure the breach; if upon thirty days after written notice the breach is uncured, the non-breaching party may terminate this Agreement upon written notice to the breaching party. Upon Your termination for Quiq’s breach, Quiq shall refund any prepaid fees for unused Hosted Software covering the remainder of the Order Term.
- Return or Destroy Quiq Property Upon Termination. Upon termination or expiration of this Agreement for any reason, You must pay Quiq for any unpaid amounts, and destroy or return all property of Quiq. You will confirm Your compliance with this requirement in writing upon request of Quiq.
- Return of Your Data. Upon request of You within 30 days after the effective date of termination of the Order, Quiq will make available for download all End User data in the Hosted Software. After a 30-day period after the effective date of termination, Quiq has no obligation to maintain any End User data.
- Suspension of Hosted Software for Violations of Law or Policy. In addition to Quiq’s termination rights under 8.b., Quiq may suspend access to the Hosted Software for Your uncured breach of this Agreement for a period up to forty-five days. Quiq will promptly restore access to the Hosted Software if the breach is cured within the forty-five day period.
- Defense of Third-party Claims. Quiq will indemnify, defend or settle any third-party claims against You alleging that the Hosted Software (excluding the End User data) used in accordance with this Agreement violates a copyright, US patent, or trademark.
- You agree to indemnify, defend or settle any third party claims against Quiq arising out of Your use of the Hosted Software.
- The indemnified party shall
- Promptly notify the indemnifying party of the claim in writing;
- Reasonably cooperate with the indemnifying party in the defense; and
- Shall allow the indemnifying party to solely control the defense or settlement of the claim.
- The indemnifying party will pay the defense costs of the attorneys the indemnifying party hires to defend the indemnified party and will pay the indemnifying party’s negotiated settlement amounts and the court awarded damages.
- Remedies. For Quiq’s indemnification claim, Quiq may modify the Hosted Software, procure the necessary rights, or replace it with the functional equivalent. If Quiq determines that none of these are reasonably available, then Quiq will terminate the Hosted Software and provide a refund of any prepaid fees for unused terminated Hosted Software.
- Exclusions. Quiq has no obligation for any claim arising from:
- Quiq’s compliance with Your designs, specification, instructions, or technical information;
- Modifications made other than by Quiq;
- A combination of the Hosted Software with other technology where the infringement would not occur but for the combination; or
- Technology not provided by Quiq.
- This section contains Your exclusive remedies and Quiq’s sole liability for intellectual property infringement claims.
- GOVERNING LAW. This Agreement will be governed by the laws of Montana (excluding its choice of law rules.) The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in the State of Montana for any claim relating to this Agreement. Nothing in this Agreement prevents any party from seeking injunctive relief in any court of competent jurisdiction. The prevailing party in any litigation or arbitration is entitled to recover its attorney’s fees and costs from the other party.
- MISCELLANEOUS OTHER TERMS. This Agreement and all Order Form(s) and SOW’s constitute the entire Agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this Agreement is effective unless both parties sign it. Neither party may assign or transfer this Agreement or an Order Form to a third-party, except that the Agreement with all Order Forms may be assigned as part of a merger, a sale of all or substantially all of the business or assets, a corporate reorganization, of a party or by operation of law. The parties are independent contractors with respect to each other. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. If there is an inconsistency between this Agreement and an Order Form or SOW, the Order Form or SOW prevails. Any terms that by their nature survive termination or expiration of this Agreement, will survive, including without limitation Sections 3, 5, 6, 7, and 10. Quiq may use Your name and logo in customer lists and related promotional materials describing You as a customer of Quiq. For U.S. Federal Government users, The Hosted Software and Documentation provided to the U.S. Government are “Commercial Items”, as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, within the meaning of 48 C.F.R. 12.212 or 48 C.F.R.227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, as provided in FAR 12.212, and DFARS 227.7202-1(a), 227.7202-3(a), 227.7202-4, as applicable.