These Terms of Service, together with any Order Forms between the Parties (the “Agreement”), govern Customer’s receipt of a subscription to access and use Qualio’s Platform, Content and Services.
The Parties agree as follows:
1. The Parties
1.1 Customer. You are accepting this Agreement on behalf of a company or other legal entity, and not as a consumer (“Customer” or “you” or “your”). You agree, represent and warrant that you have the authority to bind your company to this Agreement.
1.2 Qualio. We are Everworks Limited, trading as Qualio, a company incorporated under the laws of Ireland under company number 508152 with our registered office located at 13-18 City Quay, Dublin D02 ED70, Ireland (“Qualio” or “we” or “us” or “our”).
2.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
2.2 “Agreement” means these Terms of Service, together with the Order Form(s).
2.3 “Content” means the content made available by Qualio as part of the Services, including but not limited to, documentation, instructions, tools and information necessary to use the Services. Content does not include Customer Data.
2.4 “Customer Data” means electronic data, content, and information entered into, or submitted to, the Platform by the Customer or by a User on behalf of the Customer. Customer owns, and will continue to own, all right, title, and interest in and to any Customer Data.
2.5 “Intellectual Property Rights” means any ideas (whether or not patentable), inventions, discoveries, processes, works of authorship, marks, names, know-how, and any and all rights in such materials throughout the world, whether existing under statute, common law or equity, now or hereinafter recognized, including but not limited to (i) patents, designs, inventor’s certificates, utility models, copyrights, moral rights, trade secrets, mask works, trade names and marks, service marks, trade dress, domain names, confidential information and know-how; (ii) any application or right to apply for any of the rights referred to in section (i); and (iii) all renewals, extensions, and restorations, now or hereafter in force and effect for any of the rights herein.
2.6 “Order Form” means one or more ordering document(s) signed by Customer, including any amendments, addenda and supplements, specifying the Services to be provided by Qualio to Customer. Each Order Form will detail the business terms, including the Subscription Term’s start date and end date, a description of the licensed Subscription, the relevant quantities, and Subscription Fee for each transaction.
2.7 “Platform” means Qualio’s enterprise-level online, hosted quality management platform made available to Customer as part of the Services as set forth in an Order Form.
2.8 “Professional Services” means certain onboarding and implementation services, or consulting and advisory services associated with the Services as set forth in an Order Form.
2.9 “Renewal Term” means each successive period following the initial Subscription Term.
2.10 “Services” means collectively Qualio’s online, hosted quality management solution provided to Customer as set forth in an Order Form; and Content provided in connection with Qualio’s provision of such Services. Services may also include the Platform and Professional Services as set forth in an Order Form.
2.11 “Subscription” means a limited, time-specific license for Customer and its Users to access and use the Services and receive technical support pursuant to an Order Form and subject to the payment of the relevant Subscription Fee.
2.12 “Subscription Fee” means the fees set forth in an Order Form to be paid by Customer for any Subscription to the Services.
2.13 “Subscription Term” means collectively the initial Subscription term set forth in an Order Form and each additional Renewal Term.
2.14 “User” means an individual who is authorized by Customer to use the Services on behalf of Customer. Users may include, for example, Customer’s employees, consultants, contractors and agents, and third parties with which Customer transacts business.
3. The Platform
3.1 The Platform is designed to be used by Customer as a tool for quality management. You may use the Platform to assist you in quality management and is not intended to be a substitute for any standards required by applicable law. You are solely responsible for applying your own standards to quality management in accordance with the standards set by laws which are applicable to your business.
3.2 Access to the Platform by your authorized Users requires a computer or other electronic device and internet connection. You are solely responsible for such hardware and software and internet connection that is required for you and Users to have access to and use the Platform.
4. License to the Platform and Services
4.1 Subject to Customer’s compliance with the terms of this Agreement, including any Order Forms, Qualio will provide Customer a non-exclusive, limited, non-transferable, non-sublicensable license to access and use the Services for Customer’s internal business purposes.
4.2 As part of Customer’s access and use of the Services, Customer grants Qualio a worldwide, non-exclusive, revocable, fully paid-up, royalty free license and right to use, reproduce, display, and modify Customer Data for the purpose of providing you the Services in accordance with the Agreement.
4.3 For Customer Data that you and Users create, upload or customize as part of the Services, you agree, undertake, represent and warrant that such Customer Data (i) complies, and will continue to comply, with all applicable laws; (ii) is not negligent or misleading; (iii) does not infringe the privacy rights or any other rights of any User or other third party; (iv) does not infringe the Intellectual Property Rights of any third party; (v) has been prepared in accordance with all applicable ethical and professional guidelines under which you operate; and (vi) you have all necessary rights and permissions in Customer Data to grant Qualio the license above. You agree and acknowledge that Customer Data is provided by you and your Users and Qualio accepts no responsibility with respect to the accuracy or completeness of Customer Data.
4.4 We will use commercially reasonable efforts to ensure that the Platform, and any Services and Content available through the Platform, is made available and supported in accordance with the Service Level Agreement, the current version of which is available at qualio.com/docs/sla (“SLA”). The SLA may be updated by Qualio from time to time by posting a revised version of the SLA to the foregoing URL or a successor URL provided by Qualio to Customer in writing. Notwithstanding anything else to the contrary, any changes to the SLA will not materially degrade Qualio’s obligations under the SLA from those described at the foregoing URL on the effective date of the first Order Form between Qualio and Customer. It may be necessary to carry out updates to the Platform from time to time; and we will provide reasonable prior notice if it becomes necessary to suspend access to the Platform or the Services for a limited period of time.
4.5 Professional Services. If specifically stated in an Order Form, Qualio will provide Professional Services to Customer associated with the Services, which may include Qualio’s standard Onboarding Services, and other consulting or advisory services if requested by Customer and agreed by Qualio. Customer also understands and agrees that Qualio’s ability to provide the Professional Services, and therefore access to the Services, may be adversely affected or delayed if Customer does not provide reasonable assistance to Qualio in its performance thereof. Accordingly, Qualio will not be liable or responsible for any failure to provide the Services or Professional Services that results from Customer’s lack of reasonable cooperation during the onboarding process.
4.6 Qualio Plus Services. Qualio Plus Content is proprietary and includes the Policies, Standard Operating Procedures (SOPs), Work Instructions (WI), Document and Event Templates, Training Slide Decks and Videos provided by Qualio. Qualio Plus Content may be customized for the use of the organization who purchased the Qualio Plus Service. Customer agrees that you will not, and will not allow your Users or third parties to, directly or indirectly sell, resell, rent or lease use of Qualio Plus Content to any other person or entity, or otherwise allow any person or entity to use the the Qualio Plus Content for any purpose other than for the benefit of Customer who originally purchased the Qualio Plus Content in accordance with the Agreement. Qualio will not be liable or responsible for any failure to provide the Services or Quality Services that results from Customer’s lack of reasonable cooperation during the onboarding, enablement, or QA/RA support process.
5. Use Restrictions
5.1 Customer will comply with any limitations on its use of, or access to, the Services stated on an applicable Order Form, including but not limited to the number of permitted Users. Each User may only use the Services for the benefit of Customer for your internal business purposes, and Customer shall remain liable to Qualio for any misuse of the Services by a User.
5.2 Customer also agrees that you will not, and will not allow your Users or third parties to, directly or indirectly:
6. Fees and Payment
6.1 Subscription Fees. Customer will pay all fees specified in applicable Order Forms. Unless otherwise stated in an Order Form, (i) Subscription Fees are based on the Services purchased and not on actual use, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.
6.2 Invoicing and Payment. Subscription Fees will be invoiced in advance in accordance with the relevant Order Form. Unless otherwise stated in an Order Form, all amounts are due thirty (30) days from the date of Customer’s receipt of the invoice. Customer is responsible for providing complete and accurate billing and contact information to Qualio and notifying Qualio of any changes to such information in a timely manner, and shall not relieve Customer of its obligation to remit payment when due.
6.3 Failure to Pay. If any invoiced amount is not received by Qualio by the applicable due date and provided that Qualio has given Customer written notice (email acceptable) of the non-payment and ten (10) calendar days from the date of Qualio’s notice to cure such non-payment; then, without limiting Qualio’s other rights or remedies, (a) Qualio may suspend Customer’s access to the Services as well as associated services such as onboarding, support or professional services, as applicable, and (b) the unpaid amounts may accrue late interest at the rate of 2.0% of the unpaid amount per month, or the maximum rate permitted by law, whichever is lower.
6.4 Payment Disputes. Qualio will not exercise its rights under the “Failure to Pay” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. Customer must notify Qualio of any payment disputes in writing within fifteen (15) calendar days of Customer’s receipt of the applicable invoice.
6.5 Adding Users. Customer may contact Qualio at any time to purchase access to the Services for additional Users and/or other available Services; and the purchase will be made effective once the parties execute an Order Form, or an amendment if applicable, for such additional Users or Services. Following execution by the parties, Customer will be invoiced accordingly (prorated if applicable based on the current Subscription Term) and will pay such invoice as required under the “Invoicing” section above. The Subscription purchased under an Order Form cannot be decreased during the then-current Subscription Term and may only be decreased upon each renewal of the applicable Order Form. If it is discovered by Qualio or Customer that Customer’s actual use of the Platform or Services exceeds the Subscription in the Order Form, then Customer shall pay all applicable additional charges based on the rates set forth in the applicable Order Form. Qualio reserves the right to audit Customer’s usage of the Services to verify proper usage upon reasonable prior written request to Customer.
6.6 Taxes. Customer is, and will remain, responsible for all applicable sales, value-added, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Qualio hereunder, which will be added to Qualio’s invoice as required and paid by Customer (collectively “Taxes”). To the extent Customer is exempt from Taxes, Customer must provide to Qualio in advance a valid tax exemption certificate authorized by the appropriate taxing authority. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any Taxes from the amounts payable to Qualio hereunder, Customer will pay any applicable additional amount, so that Qualio receives the amounts due to it hereunder in full, as if there were no withholding or deduction. For clarity, Qualio is solely responsible for taxes assessable against it based on its income, property and employees.
7. Changes to Agreement Terms.
7.1 We may update the Terms of Service from time to time. We will notify you (via email or through the Platform) of the updated terms so you can review the changes. If you do not agree with any of the changes, you may terminate the Agreement or any Order Form by giving written notice of termination to Qualio at least 30 days prior to the end of the then-current Subscription Term (email acceptable), and such termination shall take effect on the expiration of the then-current Subscription Term. Notwithstanding the foregoing, if a Customer enters into a signed agreement with Qualio for Customer’s access to the Services, such executed agreement will govern between Customer and Qualio.
7.2 We may notify you in advance of a Renewal Term of a proposed change to the Subscription Fee (the “New Subscription Fee”), provided that the New Subscription Fee shall become effective starting with your next Renewal Term. If you do not agree to the New Subscription Fee, Customer may terminate the Agreement or the affected Order Form by giving written notice of termination to Qualio at least 30 days prior to the end of the then-current Subscription Term (email acceptable), and such termination shall take effect on the expiration of the then-current Subscription Term.
8. Term and Termination
8.1 Term. The term of the Agreement will commence on the effective date of the first Order Form entered into by Customer and Qualio for the Services and continue until all Order Forms have expired or been terminated. The term of each Order Form will be as stated therein.
8.2 Termination for Changes to Agreement Terms. Customer may terminate if Qualio makes changes to the Agreement or the Subscription Fee, as provided for in the “Changes to Agreement Terms” section above. No refunds are due from Qualio to Customer hereunder; and all fees due and payable by Customer pursuant to any affected Order Form(s) shall become due and payable immediately upon termination by Customer hereunder.
8.3 Termination for Cause. If a party materially breaches the terms of this Agreement (or any Order Form), the other party may terminate this Agreement (or any applicable Order Form) after thirty (30) days of providing a detailed written notice of the material breach to the breaching party to provide the breaching party to cure the breach following such notice. If after such thirty (30) day period the breach remains uncured, then this Agreement and all Order Forms, or the particular Order Form that is the subject of the breach, will immediately terminate.
8.4 Refund or Payment upon Termination for Cause. If this Agreement is terminated by Customer in accordance with the “Termination for Cause” section above, Qualio will provide Customer with a refund of any prepaid Fees covering the remainder of any applicable active Subscription Term following the effective date of termination. If this Agreement is terminated by Qualio in accordance with the “Termination for Cause” section above, Customer will pay any unpaid Taxes, interest charges (if applicable), and Fees to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any amounts payable to Qualio for the period prior to the effective date of termination.
8.5 Effect of Termination. Upon termination or expiration of this Agreement, (i) any access rights or licenses granted by Qualio hereunder will immediately terminate; and (ii) Customer will stop using or accessing the Service, and (iii) each party will either return or destroy the other party’s Confidential Information. If requested by Customer in writing prior to the effective termination date of this Agreement (email being sufficient), Qualio will grant Customer limited access to the Platform, Content and/or Services for up to thirty (30) days after the effective termination date for Customer to retrieve Customer Data. Following the 30-day period, Qualio shall promptly destroy all of the Customer Data then in Qualio’s possession or control, unless prohibited by law.
9.1 Definition of Confidential Information. “Confidential Information” means all 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 of Customer includes Customer Data; Confidential Information of Qualio includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any 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.
9.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Qualio may disclose the terms of this Agreement and any applicable Order Form to a subcontractor solely to the extent necessary to perform its obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
9.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
10. Intellectual Property Rights
10.1 Customer Data. All Intellectual Property Rights in Customer Data belongs to you and is your absolute property. Except for the express license granted herein, all rights, title and interest in and to Customer Data will remain solely with Customer.
10.2 Qualio’s Rights. We are the owner or the licensee of the Platform, Content and the Services, which are protected by copyright laws and other intellectual property laws (including laws related to trade marks, designs, database rights, sui generis rights and other proprietary rights). All such rights are reserved.
Except for the express licenses granted herein, all rights, title and interest (including Intellectual Property Rights) in and to any intellectual property owned, created or independently developed by Qualio, including but not limited to, the Platform, Content and the Services, and any derivative work, customization, modification or enhancement thereof (including all Intellectual Property Rights in any of the foregoing) whether developed prior to, during or after the Agreement, will remain solely with Qualio and its licensors. Qualio grants no implied licenses hereunder.
Other than as expressly permitted under the Agreement, you or any User may not make alterations, copies, extractions, modifications, or additions to the Content or the Platform, or sell, copy, distribute, disseminate or license it, or misuse the Content or the Platform in any way. This is without prejudice to any rights you may have under applicable mandatory law.
10.3 The parties acknowledge and agree that any breach of this section regarding “Intellectual Property Rights” may cause irreparable harm to the affected party for which damages may not be an adequate remedy and the affected party may seek interim, preliminary or protective relief from any competent court to restrain any anticipated or actual breach of this section.
10.4 Services Data. Qualio may collect aggregated, anonymized data regarding the performance and operation of the Services that results from Qualio’s customers’ use of the Services (“Services Data”). Qualio’s use of Services Data will never include disclosure of personal, identifying information of Customer or its Users and will not include or expose Customer Data. Qualio will retain all right, title and interest in and to the Services Data.
10.5 Feedback. Customer may from time to time provide suggestions, comments or other feedback specifically with respect to the Services, Platform or Content (“Feedback”). For the avoidance of doubt, Feedback will only be suggestions, comments or other feedback provided to Qualio regarding the Platform, Content and the Services and will not include or expose Customer Data. Qualio may want to incorporate Feedback into the Platform, Content and the Services and this section provides Qualio with the necessary rights to do so. Customer hereby grants Qualio and its assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicensable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback without obligation or restriction, except that Qualio will not identify Customer as the provider of such Feedback.
11. Warranties and Disclaimers
11.1 During the applicable term, Qualio warrants that the Services will conform to the then-current documentation and meet the specifications set forth in this Agreement. Qualio’s entire liability and Customer’s sole and exclusive remedy under this section will be to reperform, modify, or replace the Services so that it conforms to such warranty. Qualio will have no obligation under this Agreement to correct, and Qualio makes no warranty with respect to, errors caused by or relating to (i) use of the Services in a manner inconsistent with the documentation or this Agreement; or (ii) third party hardware or software misuse, modification, or malfunction. Qualio further warrants that Qualio’s personnel (including subcontractors if applicable) possess the knowledge, skill, and experience necessary to provide the Services.
11.2 YOU ACKNOWLEDGE AND AGREE THAT THE CONTENT MADE AVAILABLE VIA THE PLATFORM IS PROVIDED FOR INFORMATION PURPOSES ONLY, IS SUBJECT TO CHANGE AND MAY BE UPDATED FROM TIME TO TIME. YOU AGREE THAT YOUR USE OF THE CONTENT AND PLATFORM FOR ANY PURPOSE OTHER THAN AS A QUALITY MANAGEMENT TOOL IS AT YOUR OWN RISK.
11.3 EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE PLATFORM AND ANY CONTENT OR SERVICES ON OR AVAILABLE THROUGH THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. QUALIO DISCLAIMS ALL WARRANTIES AND CONDITIONS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WITH RESPECT TO THE PLATFORM AND ANY CONTENT OR SERVICES ON OR AVAILABLE THROUGH THE PLATFORM, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OR TRADE.
11.4 EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, QUALIO MAKES NO UNDERTAKING, REPRESENTATION OR WARRANTY WHATSOEVER (I) REGARDING THE COMPLETENESS OR ACCURACY, RELIABILITY OR TIMELINESS OF ANY OF THE INFORMATION CONTAINED ON THE PLATFORM; (II) THAT THE PLATFORM, ITS SERVER OR THE CONTENT IS FREE FROM DEFECTS, ERRORS, VIRUSES, BUGS OR OTHER UNKNOWN ELEMENTS; AND (III) AS TO AVAILABILITY AND/OR UNINTERRUPTED USE OF THE PLATFORM AND/OR THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QUALIO, ITS AFFILIATES OR ANY RESPECTIVE AUTHORIZED REPRESENTATIVES SHALL CONSTITUTE A WARRANTY.
12. Limitations of Liability.
EXCEPT FOR A PARTY’S OBLIGATIONS UNDER “INDEMNIFICATION” OR CUSTOMER’S BREACH OF THE “USE RESTRICTIONS” SECTION, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY, AND (C) ANY DAMAGES THAT, IN THE AGGREGATE, EXCEED THE AMOUNT PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13.1 Qualio’s Indemnification. Qualio will defend, indemnify, and hold Customer and its officers, directors, and employees harmless against any third party claim or action brought against Customer to the extent (a) the Services infringe such third party’s intellectual property rights (including intellectual property rights such as patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), and (b) caused by the gross negligence, fraud, or wilful misconduct of Qualio. Qualio agrees to pay any settlements that Qualio agrees to in a writing signed by Qualio’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Services, or portions or components of the Services, that are (a) not provided by Qualio, (b) combined with other products, processes or materials that are not reasonably contemplated by Qualio or the documentation for the Services, or (c) where Customer’s use of the Services is not in accordance with this Agreement.
13.2 Customer Indemnification. Customer will defend, Indemnify, and hold Qualio and its officers, directors, and employees harmless against any third party claim or action brought against Qualio to the extent (a) the Customer Data infringes such third party’s intellectual party rights (including intellectual property rights such as patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), and (b) caused by the gross negligence, fraud, or wilful misconduct of Customer. Customer agrees to pay any settlements that Customer agrees to in a writing signed by Customer’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction.
13.3 Procedures. The indemnifying party’s obligations under this “Indemnification” section are conditioned on the indemnified party (a) providing the indemnifying party with prompt written notice of any claim, (b) granting the indemnifying party sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense. Notwithstanding anything else to the contrary in this Agreement, the indemnifying party’s obligations under this “Indemnification” section are limited to its obligations under this “Procedures” section, payment for the cost of defense of the third party claim incurred by the indemnifying party and the payment of (i) any settlements agreed to by the indemnifying party in a writing signed by an officer of the indemnifying party, or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction.
13.4 Options. If Customer’s use of the Services has become, or in Qualio’s opinion is likely to become, the subject of any claim of infringement, Qualio may at its option and expense, (a) procure for Customer the right to continue using and receiving the Services as set forth hereunder, (b) modify the Services to make it non-infringing, (c) substitute a material equivalent for the Services, or (d) if Qualio, in its sole discretion, determines that options (a) through (c) are not commercially practicable, terminate this Agreement and refund Customer any pre-paid, unused fees for the remainder of the then-current Subscription Term as stated on the applicable Order Form.
14. Data Security and Protection.
Qualio has established and implemented an industry standard information security program regarding the protection of Customer Data, including administrative, technical and physical security processes. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or its Users). With respect to personally identifiable information contained in the Customer Data or otherwise provided by Customer to Qualio, Qualio will at all times comply with the terms of its data processing addendum, the current version of which is located at https://qualio.com/dpa (“DPA”). Provided that Qualio will not materially degrade its security practices, Qualio may modify or change the DPA upon prior, written notice to Customer. Notwithstanding the foregoing, Customer is responsible for maintaining appropriate security, protection and backup of its hardware, software, systems, information, and Customer Data. As Qualio has no access to Customer’s systems, Qualio is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to, or failure to store or encrypt, any hardware, software, systems, information, or Customer Data on such systems.
16. General Provisions
16.1 Insurance. During the term of this Agreement, Qualio will maintain applicable insurance policies with insurers having an AM Best Rating of A- VIII or better. Upon written request (email being sufficient), Qualio will provide the then-current insurance policies to Customer. Provided that Qualio will not materially reduce its insurance commitments, Qualio may change or modify its insurance policies.
16.3 Notices and Email Communications. Notices under this Agreement will be provided as follows: (a) regular communications and notices regarding the Services will be provided by email, a posting within the Platform, or other reasonable electronic means; and (c) all legal notices to Customer will be sent to the physical address in the applicable Order Form, and/or to the email provided through the Services or otherwise provided by Customer. Customer is solely responsible to update contact information for notices at all times to ensure proper delivery. Legal notices to Qualio must be sent to firstname.lastname@example.org; billing issue notices must be sent to email@example.com. Notices will be deemed to have been duly given (a) the business day after it is sent in the case of notices through email; (b) the same day in the case of notices through the Services; and (c) three (3) days after being sent by prepaid certified or registered mail.
16.4 Governing Law. The Agreement and any dispute or non-contractual obligation arising out of it, shall be governed by and construed in accordance with the laws of Ireland and the courts of Ireland have exclusive jurisdiction. Notwithstanding the foregoing, you agree that we may bring enforcement proceedings in another jurisdiction on the basis of an Irish Order or to seek interim, protective or provisional relief in the courts of another jurisdiction.
16.5 Publicity. Subject to Customer’s standard trademark usage guidelines as provided to Qualio from time to time, Customer hereby consents to inclusion of its name and logo in client lists that may be published or used as part of Qualio’s marketing and promotional efforts.
16.6 Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Qualio may assign this Agreement in its entirety (including all Order Forms), without the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer may assign this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to a Customer Affiliate or a third party who is not a direct competitor of Qualio. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
16.7 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
16.8 Severability. If, at any time, any provision of the Agreement is or becomes illegal, invalid or unenforceable, that shall not affect or impair the legality, validity or enforceability of the remainder of the Agreement (including the remainder of a provision where only part of it is or has become illegal, invalid or unenforceable).
16.9 Force Majeure. Except for Customer’s payment obligations hereunder, neither party will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-Services attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, pandemics, fires, acts of God, war, terrorism, and governmental action.
16.10 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing in the Agreement will be construed to establish any partnership, joint venture or agency relationship between the parties. Neither party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other party’s prior written consent.
16.11 No Third-Party Beneficiaries. No provision of the Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties and their respective successors and assigns.
16.12 Survival. The sections titled “Fees and Payment”, “Term and Termination”, Intellectual Property Rights”, “Disclaimer” “Limitation of Liability”, “Indemnification”, “Confidentiality” and “General Provisions” will survive any expiration or termination of this Agreement.
16.13 Entire Agreement. This Agreement, including all referenced pages and Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the Order Form, (2) this Agreement, and (3) except as expressly stated herein, any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.