Effective date: July 14, 2021.
“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.
“Agreement” means this master subscription agreement together with the Order Form and such other terms and conditions as may be added to or substituted for them from time to time.
“Agreement Date” means the agreement date stated on the Order Form.
“Content” means the content made available to you through the Platform but excludes any Customer Data.
“Customer Data” means electronic data, content, and information submitted to the Platform by the Customer or by a User on behalf of the Customer.
“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 referred to in section (i).
“Order Form” means the ordering document expressly referencing this Master Subscription Agreement, including any addenda and supplements thereto, signed by the parties hereto (or an Affiliate) specifying the Subscription and/or Services to be provided hereunder.
“Platform” means the Subscription to Qualio’s enterprise-level quality management platform, which may be made available to Customer as part of the Services if set forth in the Order Form.
“Renewal Term” means each successive, one-year period following the initial Subscription Term, whereby the Agreement is renewed in accordance with clause 6.1 and for which the Subscription Fee has been paid by the Customer to Qualio for the applicable Subscription.
“Services” means Qualio’s products and/or services provided to Customer in connection with the Agreement, and as further set forth in the Order Form (which may also include the Platform), and any Content provided by Qualio in connection with the operation and/or provision of such products and/or services.
“Service Level Agreement” or “SLA” means the service level agreement entered into between the parties on or around the date of the Agreement and as may be amended or updated from time to time.
“Subscription” means the time-limited right for the Customer and/or Users to use the Services and receive technical support pursuant to the Order Form and the payment of the relevant Subscription Fee.
“Subscription Fee” means the fees set forth in the Order Form to be paid by the Customer for any Subscriptions.
“Subscription Term” means the initial Subscription term set out in the relevant Order Form and each additional Renewal Term.
“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.
2.1 We are Everworks Limited, trading as Qualio, a company incorporated under the laws of Ireland under company number 508152 with our registered office at 13-18 City Quay, Dublin D02 ED70 (“Qualio” or “we” or “us”).
2.2 You are a business that has signed an Order Form with Qualio (“you” or “your” or “Customer”). 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.
3.1 By signing an Order Form you agree to terms and conditions set out in the Agreement.
3.2 Each Order Form will include the initial Subscription Term’s start date and end date, a description of the Subscriptions purchased, the relevant quantities, and Subscription Fee for each subscription purchased.
3.3 The Agreement governs your use of and access to the Platform, the Content and/or Services on or available through it.
3.4 We may vary the Agreement and such variation shall only take effect at the commencement of the next Renewal Term. We will notify you in advance of the revised Agreement becoming effective so that you can decide whether you wish to continue your Subscription under the terms and conditions of the revised Agreement. If you do not agree to the revised Agreement you may terminate the Agreement in accordance with clause 6.3.
4. The Platform
4.1 The Platform is designed to be used as a tool for quality management. You may use the Platform to assist you in quality management. The Platform is not a substitution for any standards required by applicable law. You shall apply your own standards to quality management in accordance with the standards set by law applicable to you.
4.2 In accordance with clause 4.8, we shall grant you a licence to access and use the Platform and Services after you have signed an Order Form with Qualio and paid the Subscription Fee. The licence to the Platform and Services shall terminate if you fail to pay any fees in accordance with clause 5.
4.3 We will use reasonable endeavours to ensure that the Platform, and any Content or Services on or available through the Platform, is made available in accordance with the Service Level Agreement, which is available at www.qualio.com/docs/sla
. It may be necessary to carry out updates to the Platform from time to time. In such circumstances we will endeavour to give you reasonable notice prior to any such suspension.
4.4 We may suspend or cease providing the Platform or any Content or Services on or available through the Platform where:
4.4.1 You have breached the terms and conditions of the Agreement; and/or
4.4.2 We are required to do so in accordance with applicable law.
4.5 We have taken steps to backup data on the Platform in accordance with good industry practice. In the event of any loss or damage to Customer Data you may submit a request to Qualio for the restoration of the lost or damaged Customer Data which is held by Qualio from the latest backup of such Customer Data.
4.6 To access the Platform you require a computer or other electronic device and internet connection. You are required to ensure that you have such hardware and software and internet connection that is required for you and Users to have access to and use the Platform.
4.7 We have in place and maintain adequate and appropriate security measures to safeguard the Platform from access or use by unauthorised persons.
Licence to the Platform and Services
4.8 In consideration of the payment of the Subscription Fee by you and receipt of same by Qualio and your acceptance of the terms and conditions of the Agreement we hereby grant you for the respective Subscription Term:
4.8.1 A non-exclusive, revocable licence to access and use the Platform and Services in accordance with the Agreement; and
4.8.2 A non-exclusive, revocable licence to use any tool we may make available to you to create Customer Data, subject always to the Agreement.
4.9 In consideration for our provision of the Platform and any Content or Services on or available through it, you grant Qualio for the duration of the Subscription Term a worldwide, non-exclusive, revocable, fully paid-up, royalty free right and licence to use, reproduce, display, and modify your Customer Data for the purpose of providing you the Platform and Services in accordance with the Agreement. Notwithstanding anything to the contrary in this Agreement, Qualio shall have a worldwide, irrevocable, perpetual and royalty-free right to make, use, reproduce, distribute, display and otherwise exploit Aggregated Data for its own purposes, including to improve or enhance the Platform and Services, provided the disclosure of any Aggregated Data does not directly, and cannot reasonably be used to, identify you or any User. “Aggregated Data” means data in aggregated form that is derived from Customer Data or your and your Users’ use of the Platform and Services, including any usage data or trends with respect to the Platform and Services.
4.10 If you or Users create, upload or customise any Customer Data you agree, undertake, warrant and represent that:
4.10.1 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,
4.10.2 You have all necessary rights and permissions in the Customer Data to grant Qualio the rights and licence in clause 4.9.
4.11 You agree and acknowledge that Customer Data is provided by you and Users and that Qualio accepts no responsibility in respect of the accuracy or otherwise of Customer Data.
4.12 Each party will defend and indemnify the other party against all reasonable losses, liabilities, costs, damages and expenses that the other party does or will incur or suffer, all claims or proceedings made, brought or threatened against the other party by any third party, and all reasonable losses, liabilities, costs, damages and expenses the other party does or will incur or suffer as a result of defending or settling any such actual or threatened claim or proceeding, in each case arising out of or in connection with:
4.12.1 Where you are the indemnified party, the infringement of the third party’s Intellectual Property Rights as a result of Your use of the Platform in accordance with the terms of the Agreement and for the purpose for which they were supplied; and
4.12.2 Where we are the indemnified party, (i) the infringement of the third party’s Intellectual Property Rights as a result of the exercise of our rights under clause 4.9, or (ii) your breach of clause 4.10 or any other representation, warranty, undertaking or prohibition set forth in this clause 4, including any User’s misuse of the Services or the Platform.
The party seeking defence and indemnity hereunder (the “Indemnified Party”) will promptly, after becoming aware of facts or circumstances that could reasonably give rise to any indemnifiable claim, notify the other party (the “Indemnifying Party”) of the claim for which defence and indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defence and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defence of any claim for which it is responsible hereunder (provided that the Indemnifying Party may not settle any such claim without the Indemnified Party’s prior written approval, unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defence or settlement of any such claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defence, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
4.13 You warrant, represent and undertake to Qualio that your use of the Platform and Services and the use of the Platform and Services by Users complies and will comply with all applicable laws.
4.14 Only you and your Users shall use of the Platform and Services.
4.15 You shall, and shall procure that Users shall, only use the Platform and Services:
4.15.1 In accordance with its intended use as set out in the Agreement;
4.15.2 In accordance with the terms and conditions of the Agreement;
4.15.3 In compliance with applicable law; and
4.15.4 For lawful purposes only.
4.16 You shall, and shall procure that Users shall, comply with the terms and conditions of the Agreement while using the Platform and Services.
4.17 You shall, and shall procure that Users shall, comply with any other terms and conditions of use and other policies posted on Qualio’s website from time to time.
4.18 You agree that you and your Users shall be jointly and severally liable to Qualio for any breach of the Agreement.
4.19 You and any User may not:
4.19.1 Frame, mirror, sell, resell, rent or lease use of the Platform or Services to any other person or entity, or otherwise allow any person or entity to use the Platform or Services for any purpose other than for the benefit of Customer in accordance with the Agreement;
4.19.2 Use the Platform or Services 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;
4.19.3 Hack into or insert malicious code into the Platform or Services;
4.19.4 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;
4.19.5 Obtain or attempt to obtain any Content, materials or information through any means not made available to you via the Platform;
4.19.6 Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Platform or Services, in whole or in part;
4.19.7 Access or search the Platform or Services (or download any data or Content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Qualio for use expressly for such purposes; or
4.19.8 Use the Platform or Services or any other Qualio Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, licence or sell any product, service or technology that could, directly or indirectly, compete with the Platform or Services.
4.20 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.
5. Fees and Payment
5.1 The Customer shall be responsible for and shall pay to Qualio the Subscription Fee in accordance with the terms and conditions of the Agreement.
5.2 The Customer shall pay all invoices within thirty (30) days of the date of invoice.
5.3 The Customer acknowledges and agrees that all invoiced fees must be paid in full before a licence is granted in accordance with clause 4.8.
5.4 The Subscription Fee set out in the Order Form will be fixed for the initial Subscription Term. The Subscription Fee for each Renewal Term will be set out in the invoice for each Renewal Term.
5.5 We may notify you in advance of a Renewal Term of a proposed change to the Subscription Fee (the “New Subscription Fee”), provided always that the New Subscription Fee shall only apply to the next Renewal Term. If you do not agree to the New Subscription Fee you may give notice of termination in accordance with clause 6.2.
5.6 If the Customer’s actual use of the Platform or Services exceeds the Subscription in the Order Form, the Customer shall pay all applicable additional charges based on the rates set forth in the applicable Order Form.
5.7 Except as expressly set forth in the Agreement, all payment obligations are non-cancellable and 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. You acknowledge and agree that subscription quantities cannot be decreased during the relevant Subscription Term.
5.8 No payment shall be deemed to have been received and paid 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.
5.9 Invoices are subject to a finance charge of 1.5% per month on any unpaid and late balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection (including reasonable attorneys’ fees).
5.10 All amounts are stated in euro (unless otherwise stated) and are exclusive of any applicable taxes. Customer is responsible for all sales, use, ad valorem 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 our invoice and paid by you, other than any taxes imposed on Qualio’s income. 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 an additional amount, so that Qualio receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
6. Term; Termination
6.1 The term of the Agreement begins on the Agreement Date and shall continue for the duration of the initial Subscription Term, unless terminated earlier in accordance with this clause 6. Thereafter the term of the Agreement will auto-renew at the end of the then-current Subscription Term for additional one-year periods so long as the Customer has a Subscription for the duration of such Renewal Term and has paid the applicable Subscription Fee in accordance with clause 5.
6.2 If the invoice for a Renewal Term contains a New Subscription Fee the Customer may terminate the Agreement by giving 30 days’ prior written notice of termination to Qualio and such termination shall take effect on the expiration of the then-current Subscription Term.
6.3 Where the Customer receives a notice in accordance with clause 3.4 of the Agreement of a change to the terms of the Agreement, the Customer may, within 30 days of receipt of such notice, give written notice of termination of the Agreement to Qualio and such termination shall take effect at the end of the then-current Subscription Term.
6.4 Either party may terminate the Agreement upon a material breach by the other party that remains uncured for 30 days following written notice of such breach, except that if a breach is not curable, the Agreement may be terminated immediately.
6.5 On termination or expiry of the Agreement:
6.5.1 All rights and obligations of the parties under the Agreement will terminate, except for those rights and obligations that survive termination;
6.5.2 Amounts outstanding owed to us pursuant to the Agreement will become immediately due to Qualio;
6.5.3 Any and all rights granted to you under clause 4.8 shall automatically terminate; and
6.5.4 All Confidential Information will be returned to the Disclosing Party or destroyed, at the Disclosing Party’s option. The Disclosing Party may request that the Receiving Party certify the return or destruction of all Confidential Information held by it.
6.6 Following termination or expiry of the Agreement for any reason, Qualio will deactivate Customer’s account. Qualio will grant Customer limited access to the Platform, Content and/or Services for 30 days to retrieve Customer Data. Following the 30-day period, Qualio shall promptly destroy all of the Customer Data and Customer metadata generated therefrom then in Qualio’s possession or control.
6.7 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 Third Party Websites
7.1 You may use third party websites to use the Platform or Services. We may provide you with a link to use the Platform via a third party website. Please be aware that we do not operate these third party websites and therefore we have no control and are not responsible for the content or actions contained in any such websites.
8.1 “Confidential Information” means all information of any nature whatsoever and in whatever form which has been previously or is after the Agreement 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 8.1.
8.2 “Disclosing Party” means a party disclosing Confidential Information under the Agreement.
8.3“Receiving Party” means a party receiving Confidential Information under the Agreement.
8.4 The parties acknowledge and agree that all information provided in connection with the Agreement including all information on the Platform is Confidential Information.
8.5 The Receiving Party undertakes to keep the Disclosing Party’s Confidential Information confidential and to (i) not use the Confidential Information for any reason, other than to the extent necessary to perform its rights and obligations under the Agreement; (ii) not 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 are subject to confidentiality obligations no less restrictive than those set forth herein, or (b) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure; and (iii) 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.
8.6 Subject to clause 8.5, you agree not to disclose Qualio’s Confidential Information to any third party without the prior written consent of Qualio.
8.7 The undertakings in clause 8.5 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; (iii) comes lawfully into the Receiving Party’s possession from a third party; or (iv) is independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
8.8 You shall be liable to Qualio for any breach of the confidentiality obligations in this clause 8 by Users.
8.9 The provisions of this clause 8 shall survive termination or expiry of the Agreement.
9. Data Protection
9.2 By agreeing to the Agreement, you agree to the processing described in our Privacy Statement and confirm that all personal data provided by you is accurate and up-to-date.
9.3 In respect of Users’ access to 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. You will ensure that you have an appropriate legal basis under applicable data protection or privacy legislation for providing such personal data to us which shall allow Qualio to process such personal data arising from their access and/or use of the Platform in accordance with law. This may include bringing our Privacy Statement to Users’ attention and procuring their acceptance of our Privacy Statement www.qualio.com/docs/privacy
10. Our Intellectual Property
10.1 We are the owner or the licensee of Content, Platform 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.
10.2 The Agreement does not transfer any Intellectual Property Rights from Qualio to you. Except for the express licences 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 Content and Platform and any derivative work, customisation, 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 licences hereunder.
10.3 Other than as permitted under the Agreement, you and/or any User may not make alterations, copies, extractions, modifications, or additions to the Content or the Platform, or sell, copy, distribute, disseminate or licence it, or misuse the Content or the Platform in any way. If you want to re-publish, extract, reproduce, disseminate or otherwise use the Content or the Platform, 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.
10.4 All Intellectual Property Rights in Customer Data belongs to you and is your absolute property. Except for the express licence granted herein, all rights, title and interest in and to Customer Data will remain solely with the Customer.
10.5 If you or any User breach this clause 10, the licence granted pursuant to clause 4.8 shall terminate immediately.
10.6 You acknowledge and agree that any breach of this clause 10 may cause Qualio irreparable harm for which damages may not be 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 10.
11. Disclaimer of Warranties
11.1 YOU 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 WITHOUT NOTICE TO YOU. 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.
11.2 YOU AGREE THAT THE PLATFORM AND ANY CONTENT OR SERVICES ON OR AVAILABLE THROUGH THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. 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.
11.3 EXCEPT AS OTHERWISE SET OUT IN THE 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 HARMFUL ELEMENTS; AND (III) IN RELATION TO AVAILABILITY AND/OR UNINTERRUPTED USE OF THE PLATFORM AND/OR THE SERVICES.
11.4 No oral or written information or advice given by Qualio, its Affiliates or any of their respective authorised representatives shall create a warranty.
12.1 Nothing in the Agreement shall exclude or limit Qualio’s liability for death or personal injury resulting from its negligence or of its officers, representatives their servants, agents, Affiliates, employees, or any other liability which may not be limited or excluded under applicable law.
12.2 Qualio shall not be liable for any loss or damage arising out of or in connection with your use or inability to use the Platform or your reliance on the information contained on the Platform or the Content or Services on or available through the Platform.
12.3 Qualio is not liable to you or to any third party for any update, change, suspension, discontinuance of any feature or component of the Content or Platform.
12.4 Except in the case of Qualio’s intentional acts, willful misconduct or gross negligence of our personnel, Qualio shall not be liable for any loss or damage to Customer Data.
12.5 Qualio uses standard anti-virus software in accordance with good industry practice. Qualio shall not liable to you for any loss or damage to, or viruses or other code caused by a third party that may affect, any equipment (including any computer, tablet, mobile or other device), software, data or other property.
12.6 Qualio shall not be liable for damages, costs or losses, that may result from interruption or interception of communications, or from unauthorized access or hacking which is not directly caused by Qualio.
12.7 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, QUALIO SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES, OR ANY LOSS OF INCOME, BUSINESS, REVENUE OR PROFITS, LOSS OR CORRUPTION OF DATA, ANY CORRUPTION OR DAMAGE TO EQUIPMENT DEVICE, HARDWARE OR SOFTWARE, OR ANY LOSS OR DAMAGE WHICH WAS NOT FORESEEABLE TO BOTH THE PARTIES, HOWEVER ARISING, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF QUALIO HAS BEEN ADVISED OF THE POSSIBILITY OF SAME IN ADVANCE.
12.8 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, QUALIO’S LIABILITY UNDER THE AGREEMENT SHALL BE 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.
12.9 Each User may only use the Services for the benefit of Customer, and Customer shall remain liable to Qualio for any misuse of the Services by a User.
13. General Provisions
13.1 Entire Agreement. The Order Form and the Agreement constitutes the entire agreement between you and Qualio with respect to the subject matter of the Agreement and overrides and supersedes all prior agreements concerning it (whether written, oral or implied) which are hereby revoked by our mutual consent. Neither 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 the 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) the Agreement. Any pre-printed terms on any Customer purchase order will have no effect on the terms of the Agreement and are hereby rejected and the terms of the Agreement shall always prevail.
13.2 Notices. You must send any formal notice under the Agreement to Qualio by sending it in writing to our postal address at 13-18 City Quay, Dublin D02 ED70, Ireland, unless otherwise specified in the Agreement.
13.3 Governing Law.
13.3.1 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, subject to clause 13.3.2, the courts of Ireland have exclusive jurisdiction.
13.3.2 Notwithstanding clause 13.3.1, 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.
13.4 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.
13.5 Transfers. The Agreement is personal to you and may not be transferred or assigned by you to anyone else, by operation of law or otherwise without our prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. We may assign, transfer or otherwise dispose of all or any of our rights or obligations under the Agreement, in whole or in part, without your consent, at our absolute discretion, by prior notice to you. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns.
13.6 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 party 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.
13.7 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).
13.8 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, epidemics, 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.
13.9 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.
13.10 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.