Master Subscription Agreement

Master Subscription Agreement

Effective date: November 1st, 2018 (view previous version)

Please read these terms carefully. This Master Subscription Agreement together with any applicable Order Form(s) governs your access to and use of the Platform and the Content and Services available through the Platform.

1. Definitions

1.1.  “ Agreement ” means this master subscription agreement together with any applicable Order Form(s) and such other terms and conditions as may be added to or substituted for them from time to time pursuant to the Agreement.

1.2.  “ 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.

1.3.  “ Content ” means all Intellectual Property rights in the Platform, the Platform’s content, including the Platform’s “look and feel”.

1.4.  “ Customer Data ” means electronic data, content, and information submitted to the Platform by Customer or by a third-party on behalf of Customer.

1.5.  “ Effective Date ” means the last date upon which either party executes the relevant document, such as this Agreement or an Order Form.

1.6.  “ Initial Term ” means the first time period covered under the Agreement.

1.7.  “ Intellectual Property ” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations, and information.

1.8.  “ Order Form ” means an ordering document expressly referencing the Agreement, including any addenda and supplements thereto, signed by the parties hereto (or an Affiliate) specifying the Services to be provided hereunder.

1.9.  “ Platform ” means Qualio’s enterprise-level quality management platform, which may be made available to Customer as part of the Services if set forth in an Order Form.

1.10.  “ Services ” means Qualio’s products and/or services provided to Customer in connection with the Agreement, and as further set forth on an applicable Order Form, and any Intell provided by Qualio in connection with the operation and/or provision of such products and/or services, excluding Customer Data.

1.11.  “ Subscription ” means the time-limited right for the Users to use the Service and receive technical support.

1.12.  “ Subscription Fee ” means the fees set forth in the applicable Order Form(s) to be paid by Customer for the Subscriptions.

1.13.  “ User ” means an individual who is authorized by Customer to use the Services. Users may include, for example, Customer’s employees, consultants, contractors and agents, and third parties with which Customer transacts business.

2. Parties

2.1.  We are Everworks Limited trading as Qualio, a company incorporated under the laws of Ireland under company number 508152 with our registered office at Westlodge, Deerpark, Mitchelstown, Co. Cork, Ireland (“Qualio” or “we” or “us”).

2.2.  You are a business who has registered with Qualio to use the Platform (“you” or “your“) you agree, warrant and represent that you are entering into the Agreement in the course of your business and trade, and not as a consumer. You agree you are bound in full by all clauses of the Agreement.

3. Agreement

3.1. We provide and make available, and you use and access the Platform and the Content and Services on or available through it subject to the Agreement.

3.2.  You agree to be bound by the Agreement by signing up with Qualio or by using the Platform.

3.3.  We reserve the right to vary the Agreement. If we do so, the revised Agreement will be notified to you in advance so that you can decide whether you wish to continue using the Platform under the revised Agreement, or if you wish to terminate your access to the Platform.

4. The Platform

4.1.  The Platform is designed to be used as a tool for quality management. However, the Platform is not a substitute for compliance and it is always for you to ensure you are compliant with applicable regulatory requirements.

4.2.  Access is provided to the Platform to you where you have signed up with Qualio; agreed to the Agreement and paid the Subscription Fee. Use of the Platform is permitted to you and to Users only. You must procure that all Users comply with the Agreement and our Privacy Statement and any other terms and conditions of use and other policies posted on our website from time to time.

4.3.  We are not liable if for any reason the Platform or any Content or Services on or available through it are unavailable at any time or for any period, or (without prejudice to the generality of Clause 6.2) if we suspend or cease providing the Platform or any Content or Services on or available through it.

4.4.  We take reasonable steps to backup data on the Platform and you should implement your own measures to do likewise. In the event of any loss or damage to Customer Data that you cannot restore from your own backups, your sole and exclusive remedy will be for Qualio to use reasonable endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data maintained by Qualio. Except in the case of intentional acts, willful misconduct or gross negligence of our personnel, Qualio is not responsible for any loss or damage to Customer Data.

4.5.  You are responsible for making all minimum hardware and software, internet connection and other arrangements necessary for you and Users to have access to the Platform.

4.6.  While we may take precautions against security breaches, no website, application or internet transmission is completely secure, and as such, you acknowledge that neither we nor third parties connected to Qualio shall be liable for damages, costs or losses, that may result from interruption or interception of communications or unauthorized access or hacking. We cannot guarantee the privacy and security of such communications.

4.7.  The Platform is independent of any device on which it is located. Your access to and use of the Platform may also be governed by the terms and conditions of your internet provider.

5. Fees and Payment

5.1.  Customer shall be responsible for and shall pay to Qualio the fees set forth in the applicable Order Form in accordance with the terms and conditions contained therein. Customer shall pay all invoices within ten (10) days of the date of invoice. All fees must be paid in full before access to the Platform will be granted.

5.2.  The fees set forth in the Order Form will be fixed for the initial subscription term. (“Initial Term”). Following the Initial Term, the subscription will automatically renew for a period of one year (each, as applicable, a “Renewal Term”). Fees for Renewal Terms will be invoiced as set forth in the Order Form. Any permitted and imposed price changes will be reflected on Renewal Term invoices. Either party may give the other party written notice (email acceptable) of non-renewal at least thirty (30) days prior to the end of the then-current subscription term.

5.3.  If Customer’s actual usage exceeds the subscribed-for amount indicated in an Order Form, Customer shall be responsible for paying the applicable overage charges based on the rates set forth in the applicable Order Form.

5.4.  We may increase the Subscription Fee in advance of any Renewal Term to apply to that Renewal Term, which will be notified to you in advance.

5.5.  Except as expressly set forth in the Agreement or the Order Form, all payment obligations are non-cancelable and, except as expressly set forth in this Agreement, fees will not be refunded or pro-rated for any reason, including if Customer’s actual usage of the Services falls below the purchased amount indicated in an applicable Order Form. Subscription quantities cannot be decreased during the relevant subscription term.

5.6.  No payment shall be deemed to have been received until we receive cleared funds. Fees and other sums due shall be paid in full without any withholding or deduction by way of set-off, counterclaim, discount, abatement or otherwise.

5.7.  Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.

5.8.  All amounts are stated in euro (unless otherwise stated) and are exclusive of value added tax which will be added to our invoice and paid by you at the appropriate rate and in the manner for the time being provided by applicable law.

6. Term; Termination

6.1.  The term of the Agreement begins on the Effective Date and shall continue for three (3) years. The Agreement term will auto-renew for additional one (1) year periods so long as there is an active subscription. Each Order Form will incorporate this Agreement by reference and be signed by both parties. A valid Order Form must include the Effective Date of such Order Form, a description of the subscriptions purchased, the relevant licensing quantities, subscription fees, and the subscription term for each subscription purchased. Each valid Order Form will also incorporate this Agreement by reference. While the termination of an individual Order Form will not affect other Order Forms; the termination of the Agreement terminates all active Order Forms.

6.2.  Either of us may terminate this Agreement or any Order Form upon the other party’s material breach that remains uncured for thirty (30) days following written notice, except that if a breach is not curable, the Agreement or Order Form may be terminated immediately. At our discretion, we may terminate the Agreement when there are no active Order Forms.

6.3.  On termination or expiry of your subscription:

6.3.1.  all rights and obligations of the parties under the Agreement will terminate;

6.3.2.  Amounts outstanding owed to us will become immediately due;

6.3.3.  the licence granted to you under Clause 8.1 shall automatically terminate.

6.3.4.  Following termination or expiration of Customer’s subscription for any reason, Qualio will deactivate Customer’s account. Qualio will grant Customer limited access to the Service for thirty (30) days to retrieve Customer Data or request its early destruction. Following the thirty (30) day period, Qualio shall promptly destroy all of the Customer Data and Customer Metadata then in Qualio’s possession or control.

6.3.5.  All Confidential Information will be returned to the Disclosing Party or destroyed, at the Disclosing Party’s option. Disclosing Party may request that the Receiving Party certify the return or destruction of all Confidential Information held by it.

6.4. All clauses of the Agreement that by their nature should survive termination or expiration of the Agreement shall be deemed to survive any such termination or expiration.

7. Our Intellectual Property

7.1.  We are the owner or the licensee of Content, which is 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.

7.2.  You and/or any User may not make alterations, copies, extractions, modifications, or additions to the Content, or sell, copy, distribute, disseminate or licence it, or misuse the Content in any way. If you want to re-publish, extract, reproduce, disseminate or otherwise use the Content, you must contact Qualio in advance for written permission except if otherwise expressly provided in the Agreement. This is without prejudice to any rights you may have under applicable mandatory law.

7.3.  If you or any User breach this clause 7 your right to use our Platform ceases immediately.

7.4.  You acknowledge and agree that any breach of this clause 7 will cause Qualio irreparable harm for which damages are not an adequate remedy and that we may seek interim, preliminary or protective relief from any competent court to restrain your anticipated or actual breach of this clause 7.

8. Use of Platform

8.1. In consideration of the Subscription Fee and your compliance with the Agreement we hereby grant you:

8.1.1. a non-exclusive, revocable licence to access and use the Platform in accordance with the Agreement; and

8.1.2. a non-exclusive, revocable licence to use any tool we may make available to you to create Customer Data, subject always to the Agreement.

8.2. All Intellectual Property rights in Customer Data belongs to you and is your absolute property. In consideration for the provision of the Platform and any Content or services on or available through it you grant Qualio for the duration of your subscription a worldwide, non-exclusive, revocable, fully paid-up, royalty free right and licence to use such Customer Data for the purpose of providing you the Platform in accordance with the Agreement.

8.3. If you or Users create, upload or customise any Customer Data you agree, undertake, warrant and represent that:

8.3.1. such Customer Data (i) complies with all applicable laws; (ii) is not negligent or misleading; (iii) does not infringe the privacy rights of any User or other third party; (iv) does not infringe the Intellectual Property rights of any third party; (v) does not infringe any third party rights (of any nature whatsoever); (vi) does not violate the terms of any professional indemnity insurance policies held by you; and (vii) has been prepared with due care and attention and in accordance with all applicable ethical and professional guidelines under which you operate; and,

8.3.2. you have all necessary Intellectual Property rights in the Customer Data to grant Qualio the license in clause 8.2.

8.4. Customer Data is provided by you and Users. Qualio accepts no responsibility in respect of the accuracy or otherwise of Customer Data.

8.5. You hereby agree to indemnify, defend and hold harmless and to keep fully and effectively indemnified, defended and held harmless Qualio and our officers, agents, partners and employees against all losses, expenses, damages and costs from and against any and all liability and costs, including, without limitation, reasonable lawyers’ fees, incurred in connection with any claim arising out of your use of the Platform, Users’ use of the Platform or any breach by you or Users or any person to whom you have given access to your account of the Agreement, including in particular this clause 7. You shall cooperate fully as reasonably required by Qualio in the defense of any such claim.

8.6. You warrant, represent and undertake to Qualio that your use of the Platform and the use of the Platform by Users complies with all applicable laws.

9. Use of the Platform by Users

9.1. You hereby acknowledge and agree that access and use of the Platform by Users is subject to the Agreement and their acceptance of Qualio’s terms and conditions of access from time to time by such Users.

10. Third Party Websites

10.1. The Platform or Content may contain links to third party websites. The linked websites are not under our control and we are not responsible for the content or actions of any linked website or any link contained in a linked website, or any changes or updates to such websites.

10.2. The inclusion of any link does not imply endorsement by Qualio of any website. Your use of third party websites is likely subject to the terms and conditions of use and privacy policy contained within each of those websites. We may terminate a link to a third party website at any time.

11. Improper use of the Platform

11.1. You and any User may not use the Platform in any manner that could damage, disable, overburden, or impair it, its servers, or the network(s) connected to the server, or interfere with any other party’s use and enjoyment of the Platform and services on or available through it.

11.2. You and any User may not hack into or insert malicious code into the Platform.

11.3. You and any User may not attempt to gain unauthorized access to any services, parts of the Platform, other accounts, computer systems or networks connected to any server through hacking, password mining or any other means.

11.4. You and any User may not obtain or attempt to obtain any Content, materials or information through any means not intentionally made available to you.

11.5. Illegal and/or unauthorized use of the Platform, Content or services on or available through the Platform will be investigated and appropriate legal action may be taken.

12. Data Protection

12.1. We process information about you and Users in accordance with our Privacy Policy which is available at www.qualio.com/docs/privacy.

12.2. By agreeing to the Agreement, you consent to the processing described in our Privacy Statement and confirm that all personal data provided by you is accurate and up-to-date.

12.3. In respect of Users’ access and use of the Platform you agree, undertake, warrant and represent that you will ensure your compliance with all applicable data protection or privacy legislation where you provide us with Users’ personal data and you will procure from all Users all consents required under applicable data protection or privacy legislation in respect of Qualio’s processing of their personal data arising from their access and/or use of the Platform, including bringing our Privacy Statement to Users’ attention and procuring their acceptance of our Privacy Statement www.qualio.com/docs/privacy.

13. Liability

13.1. Content made available via the Platform is provided for information purposes only, is subject to change and will be updated from time to time without notice to you. THE PLATFORM IS A TOOL AND IS NOT DESIGNED TO SATISFY YOUR REGULATORY COMPLIANCE REQUIREMENTS. The Platform is simply a TOOL FOR QUALITY MANAGEMENT.

13.2. THE CONTENT MADE AVAILABLE THROUGH THE PLATFORM IS NOT INTENDED AS A SUBSTITUTE FOR INFORMED REGULATORY COMPLIANCE ADVICE OR TRAINING. YOU MUST CONSULT A SUITABLY QUALIFIED PROFESSIONAL ON ANY SPECIFIC ISSUE OR MATTER WHICH IS COVERED BY ANY INFORMATION ON THE PLATFORM BEFORE TAKING ANY ACTION.

13.3. Use of the Platform is entirely at your own risk and you assume full responsibility and risk of loss resulting from the use of, viewing, access to, relying on, or downloading from, the Platform and/or Content.

13.4. You agree that we are not liable for loss or damages arising out of your use, or your inability to use, the Platform or any Content or services accessible through the Platform. The Platform and Content or services on or accessible through the Platform are provided on an “as is” basis and we make no undertaking, representation or warranty whatsoever: (i) regarding the completeness or accuracy, reliability or timeliness of any of the Content; (ii) that the Platform, its server or the Content is free from defects, errors, viruses, bugs or other harmful elements; (iii) in relation to availability and/or uninterrupted use of the Platform and/or the Content, and we expressly disclaim all such warranties, representations and undertakings to the maximum extent permitted by law.

13.5. You should check that the Platform is compatible with all hardware and software you use. We are not liable for damage to, or viruses or other code that may affect, any equipment (including any computer, tablet, mobile or other device), software, data or other property as a result of your access to or use of the Platform. We are not liable to you for: (i) any loss of income, business, revenue or profits; (ii) any loss or corruption of data; (iii) any corruption or damage to equipment device, hardware or software; or (iv) any loss or damage which was not foreseeable to both you and Qualio.

13.6. To the fullest extent permitted by applicable law, Qualio shall not be liable for any special, indirect or consequential loss, costs, damages, charges or expenses however arising even if Qualio has been advised of the possibility of same in advance.

13.7. To the fullest extent permitted by applicable law, if we have any liability to you, it is in all cases limited in aggregate to the Subscription Fees paid to Qualio under the Agreement during the 12 months preceding the date on which event giving rise to the claim first arose (except in the case of death or personal injury). Where you pay Subscription Fees annually in advance, Qualio’s aggregate liability will be limited to the equivalent of 12 months of your Subscription Fees, as if your Subscription Fees had been paid monthly in advance.

13.8. You are liable to Qualio for any loss, damage or harm suffered or incurred by Qualio as a result of your breach of the Agreement.

13.9. You acknowledge and agree that the Subscription Fees are based upon the assumption that Qualio’s liability is limited as provided in the Agreement.

14. Confidentiality

14.1. “Confidential Information” means all information of any nature whatsoever and in whatever form which has been previously or is after the Commencement Date disclosed by or on behalf of the Disclosing Party to the Receiving Party which is marked confidential or which ought reasonably be treated as confidential including trade secrets, financial affairs, strategies, customer lists, know-how, methods and the operations of the Disclosing Party; and all analyses, compilations, notes, reports, memoranda, records and other documents of any nature prepared by or on behalf of the Receiving Party or the Disclosing Party which contain or otherwise reflect or are derived from the information referred to in Clause 14.1.

14.2. “Disclosing Party” means a Party disclosing Confidential Information under the Agreement.

14.3. “Receiving Party” means a Party receiving Confidential Information under the Agreement.

14.4. The Receiving Party undertakes to keep the Disclosing Party’s Confidential Information confidential and not to (i) use the Confidential Information for any reason, other than to the extent necessary to perform its rights and obligations under the Agreement; (ii) disclose the Confidential Information to any third party except its employees that (a) have a legitimate “need to know” for furtherance of the Receiving Party’s rights and obligations under the Agreement, and (b) are subject to confidentiality obligations no less restrictive than those set forth herein; and (iii) to exercise the same degree of care in protecting the Disclosing Party’s Confidential Information that it uses for its own confidential information of a similar nature, but in no event less than reasonable care. The undertakings in this Clause 14.4 shall not apply to Confidential Information which (i) at any time is or comes into the public domain without breach of the Agreement(or any other obligation of confidentiality); (ii) was lawfully in the possession of the Receiving Party prior to disclosure; or (iii) comes lawfully into the Receiving Party’s possession from a third party.

14.5. The provisions of this Clause 14 shall survive termination or expiry of the Agreement.

General Provisions

15.1. Entire Agreement. The Agreement represents the entire understanding of the parties concerning their subject matter and override and supersede all prior agreements concerning it (whether written, oral or implied) which are hereby revoked by our mutual consent. Neither of Qualio nor you has relied upon, or has any remedies in respect of, any representations, terms or conditions except those set out in the Agreement. This does not exclude any liability for fraud and/or fraudulent misrepresentations. Any conflict between this Agreement and the terms of any SOW, any Order Form, or other exhibit hereto, will be resolved in the following order: (a) any Order Form in date order with the most recent Order Form being of highest precedence; (b) any SOW; and (c) this Agreement. Any pre printed terms on any Customer purchase order will have no effect on the terms of this Agreement and are hereby rejected.

15.2. Notices. You must send any formal notice under the Agreement to Qualio by sending it in writing to our postal address at Ground Floor, Block D, Iveagh Court, Harcourt Road, Dublin D02 VH94, Ireland.

15.3. Governing Law.

15.3.1. The laws of Ireland apply to the Terms (and any matter or dispute arising out of or in connection with them) and, subject to clause 15.3.2, the courts of Ireland have exclusive jurisdiction in connection with the Terms and all such matters and disputes.

15.3.2. Notwithstanding Clause 15.3.1, you agree that we may bring enforcement proceedings in another jurisdiction on foot of an Irish Order or to seek interim, protective or provisional relief in the courts of another jurisdiction.

15.4. Publicity. Customer hereby consents to inclusion of its name and logo in client lists that may be published as part of Qualio’s marketing and promotional efforts

15.5. Transfers. The Agreement is personal to you and may not be transferred or assigned to anyone else. We may assign, transfer or otherwise dispose of all or any of our rights or obligations under the Agreement, in whole or in part, by prior notice to you, at our absolute discretion.

15.6. Waiver. The exercise by Qualio of any rights under the Agreement is without prejudice to any of its other rights and remedies. The provisions of the Agreement may only be waived by either of Qualio in writing by express reference to the provision in question. No delay, neglect or forbearance on the part of Qualio in enforcing any provision of the Agreement is a waiver, or in any way prejudices any right of Qualio under the Agreement. A waiver by Qualio of any breach of any of the provisions of the Agreement does not constitute a general waiver of such provision or of any subsequent act contrary to it.

15.7. 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).

15.8. Events Beyond our Control. We are not in breach of the Agreement or liable to you if there is any total or partial failure of performance of any of our duties and obligations resulting from any act or matter beyond our reasonable control. This may include where such results from any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, inability to communicate with third parties for whatever reason, failure of any computer dealing or settlement system, failure of or delay in the transmission of communications, prevention from or hindrance in obtaining any energy or other supplies, labour disputes of whatever nature, late or mistaken payment by an agent or any other reason (whether or not similar in kind to any of the above) beyond our reasonable control.

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