QliqSOFT Terms and Conditions

These QliqSOFT Terms and Conditions (“Terms”) by and between QliqSOFT, Inc. (“QliqSOFT”) and the WellSky customer listed on the applicable Order Form (“Customer”) govern Customer’s access to and use of one or more applications (each, an “Application”) provided by QliqSOFT.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions.

“Users” means Customer designated users who are part of Customer’s group(s), who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by QliqSOFT at Customer’s request).

“User Data” means all electronic data or information submitted by Users to the Service.  Data includes user name, contact information, profession and other account information.

“User Message Data” means all electronic data or information sent by Users of the Service to other Users of the Service through the Service.  User Message Data includes the actual text, file and image data securely transmitted via the Service.

“Service” means the Qliq Secure Texting and/or Quincy Digital Engagement services provided by QliqSOFT and described in Exhibit A.

“Laws” means any treaty, directive, statute, legislation or other law enacted by any federal, state or local government in a relevant jurisdiction, including any regulatory requirement contemplated thereunder.

2. Service.

2.1 Provision of Service. QliqSOFT shall make the Service available to Customer pursuant to these Terms.

3. Use of the Service.

3.1 QliqSOFT Responsibilities. QliqSOFT shall: (i) not use, edit or disclose to any party other than Customer the User Data; (ii) maintain the security and integrity of the Service and the User Data; and (iii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for scheduled downtime (of which QliqSOFT shall give notice and which QliqSOFT shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. PT Friday to 3:00 a.m. PT Monday); or (b) downtime caused by circumstances beyond QliqSOFT’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems not involving QliqSOFT employees, computer or telecommunications failures or delays involving hardware or software not within QliqSOFT’s possession or reasonable control, and network intrusions or denial of service attacks, but only to the extent unavailability results notwithstanding the exercise by QliqSOFT of reasonable care and due diligence to avoid or mitigate the same in anticipation of or in response to such causes.  QliqSOFT represents and warrants that throughout the term of this Agreement the Service will utilize encryption technology to secure information both in transit and at rest in a manner meeting or exceeding any published guidelines for encryption technology required by laws and regulations applicable to Customer.  Further, QliqSOFT represents and warrants that the Services will be provided in a competent and professional standard.

3.2 Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s User accounts.  Customer shall:  (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify QliqSOFT promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Service.

3.3 Use Guidelines. Customer shall not:  (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (iii) attempt to gain unauthorized access to the Service or its related systems or networks.

4. Proprietary Rights.

4.1 Reservation of Rights. Customer acknowledges that in providing the Service, QliqSOFT utilizes (i) the QliqSOFT names, logos and domain names, the product and service names associated with the Service, and other trademarks and service marks; (ii) certain information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “QliqSOFT Technology“) and that the QliqSOFT Technology is covered by intellectual property rights owned or licensed by QliqSOFT (collectively, “QliqSOFT IP Rights“). Other than as expressly set forth in this Agreement, no license or other rights in or to the QliqSOFT Technology or QliqSOFT IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.

4.2 License Grant. QliqSOFT grants Customer and its Users a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service in accordance with the terms of this Agreement.

4.3 End-Users Terms of Service. Upon logging-on the Service, Customer’s Users agree to the terms of a QliqSOFT Terms of Service.

4.4 Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or QliqSOFT Technology; (ii) disassemble, reverse engineer, or decompile the Service or QliqSOFT Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.

4.5 Customer Data. As between QliqSOFT and Customer, all User Data and User Message Data is owned exclusively by Customer and shall be accessed or disclosed by QliqSOFT solely for the limited purpose of providing the Service.  User Data and User Message Data shall be considered Confidential Information subject to the terms of this Agreement.  QliqSOFT may access Customer’s User accounts, including User Data, to address service or technical problems or at Customer’s request and to provide, collect or use aggregated information or statistics.

4.6 Suggestions. QliqSOFT shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services.

5. Warranties & Disclaimers.

5.1 Warranties. QliqSOFT represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it owns or otherwise has sufficient rights to the Service and the QliqSOFT Technology to grant the rights and licenses granted herein; and (iii) the Service and QliqSOFT Technology do not infringe any intellectual property rights of any third party.

5.2 Disclaimers.EXCEPT AS EXPRESSLY PROVIDED HEREIN, QLIQSOFT MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.  QLIQSOFT HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

QliqSOFT is not responsible for and does not endorse the information, User Message Data and opinions entered into the Service, nor any provision of medical care described or discussed on the Service. Users and Customer are responsible for all information and for making all medical decisions with respect to medical treatments. The information provided by Participants is not endorsed by QliqSOFT, and QliqSOFT shall have no legal duty to ensure the accuracy of any information created by Users.

Customer is responsible for compliance with all governmental, regulatory and other legal requirements with respect to User Message Data disclosed on the Service or actions taken by Customer or its Users in the course of the evaluating or using the Service.

6. Mutual Indemnification.

6.1 Indemnification by QliqSOFT. Subject to this Agreement, QliqSOFT shall defend, indemnify and hold Customer harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims“) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes any United States copyright, trademark or trade secret of a third party; provided, that Customer (a) promptly gives written notice of the Claim to QliqSOFT; (b) gives QliqSOFT sole control of the defense and settlement of the Claim (provided that QliqSOFT may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to QliqSOFT, at QliqSOFT’s cost, all reasonable assistance.

6.2 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold QliqSOFT harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against QliqSOFT (1) by a User or another third party alleging that use of the Service has harmed a User or another third party, or that the User Data infringes the intellectual property rights of, or has otherwise harmed, a User or another third party, or (2) by a government or regulatory agency related to Customer’s products;  provided, that QliqSOFT (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases QliqSOFT of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

7. Limitation of Liability.

7.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF $250,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER.

7.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

7.3 Limitation of Action. Except for actions for non-payment or breach of either party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.

8. Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 4, 5, 6, and 7.