1. QUIQ MESSAGING AND SERVICES. This Agreement and an applicable Order Form (collectively the “Agreement”) provide Customer access to Quiq’s cloud-based hosted software and related services (“Hosted Software”).
2. USE OF HOSTED SOFTWARE.
   1. License grant. pon Quiq’s acceptance of an Order Form and subject to the terms of this Agreement, Quiq grants Customer a non-exclusive, non-assignable, royalty-free, worldwide limited license to use the Hosted Software solely for the business operations of Customer. Quiq will provide this Hosted Software through the web from its cloud-based hosting environment. Quiq has no delivery obligations and will not ship copies of the Quiq software to Customer. For Customers using WhatsApp’s apps, software, features, services and API’s, the WhatsApp Business Terms of Services and all other applicable terms, policies and documentation will govern. A copy of the WhatsApp Business Terms can be accessed at https://www.whatsapp.com/legal/business-terms.
   2. Order Forms. This Agreement contemplates one or more Order Forms for the Hosted Software, and each Order Form will describe the Hosted Software ordered and associated fees in more detail.
   3. License duration. Licenses expire at the end of the applicable Order Term (defined below) set forth in the Order Form, unless renewed.
   4. End users. Customer’s employees, agents, and contractors (each an “Authorized End User”), and Customer’s end users (each an “End User”) may use the Hosted Software. Each Authorized End User must be registered with a unique username and password; no two Authorized End Users may register or use the Hosted Software as the same registered Authorized End User, nor may Authorized End Users share the same username and password. Customer is responsible for each Authorized End User’s and End User’s compliance with the Agreement.
   5. Affiliates. Customer may order Hosted Software for use by its Affiliates and in such case, the license granted to Customer under this Agreement will apply to such Affiliates, provided that Customer will have the sole right to enforce this Agreement against Quiq. Customer shall remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement and any applicable Order Form(s).
   6. Reservation of rights. Quiq reserves all rights not expressly granted in this Agreement. No rights will be granted or implied by waiver or estoppel.
   7. Support and Availability. Quiq will provide customer support (“Support”) for the Hosted Software as part of Customer’s Hosted Software fee, as further detailed at: https://quiq.com/sla, which terms are incorporated into this Agreement and may be changed from time to time as long as there is no material reduction in the level of support. Quiq targets an availability of the Hosted Software at 99.5% measured monthly (“Uptime Target”), excluding Maintenance Windows and problems with the availability of the Hosted Software caused by Customer or third party systems or technology beyond the reasonable control of Quiq. If the Hosted Software fails to meet the Uptime Target, Customer will notify Quiq within thirty days of the month when the Uptime Target was missed, and as Quiq’s sole obligation and Customer’s sole remedy, Quiq will provide Customer with a one-month extension to use the Hosted Software under this Agreement at no charge, to begin immediately at the expiration of the then current Order Term. For purposes of this subsection, “Maintenance Window” means the Hosted Software is unavailable due to system maintenance by Quiq or its third party hosting partner, provided Quiq gives Customer notice of the maintenance at least twenty-four hours before it starts.
   8. Customer Responsibilities and Acceptable Use. Customer must:
      1. keep its access credentials secure and confidential;
      2. use commercially reasonable efforts to prevent unauthorized access to the Hosted Software, and notify Quiq promptly of any such unauthorized access;
      3. use the Hosted Software only in accordance with its Documentation at https://knowledge.quiq.com/; and
      4. comply with all applicable laws, including without limitation, the Telephone Consumer Protection Act (“TCPA”) and its requirements applicable to outbound SMS messages, and any applicable data protection regulation(s), including without limitation, the General Data Protection Regulations, to the extent applicable, when using the Hosted Software.

         Customer further acknowledges and agrees:

      5. its use of the Hosted Software is subject to the Quiq Privacy Policy at https://quiq.com/privacypolicy; and
      6. Quiq has no responsibility for Customer’s processing of Customer Data (defined below) in the Quiq Hosted Software, provided this does not limit Quiq’s obligations to protect the Customer Data in the Hosted Software pursuant to its security policy.

         Acceptable Use. Customer may not:

      7. sell, resell, rent or lease the Hosted Software;
      8. store or transmit infringing, libelous, or otherwise unlawful or tortious material or to store or transmit material in violation of third-party rights;
      9. interfere with or disrupt the integrity or performance of the Hosted Software, including without limitation any performance, benchmark, load, scalability, stress, security, or penetration testing, unless Customer has requested and Quiq has granted written permission beforehand;
      10. attempt to gain unauthorized access to the Hosted Software or its related systems or networks;
      11. reverse engineer the Hosted Software;
      12. remove or modify any proprietary marking or restrictive legends in the Hosted Software;
      13. access the Hosted Software to build a competitive product or service, or copy any feature, function, UI or graphics of the Hosted Software,
      14. access the Hosted Software in a way in which a contractual usage limit is subverted, or
      15. store or transmit credit card numbers in the Hosted Software. To help identify an unintentionally processed credit card number in the Hosted Software, Quiq will utilize the Luhn algorithm, https://en.m.wikipedia.org/wiki/Luhn_algorithm; text matching the Luhn pattern is replaced with asterisks and the rest of the message remains in place. If there is other text Customer would like to remove, Customer will notify Quiq, and other text may be removed from messages by defining a regular expression pattern to match the text desired to be removed and such text will be replaced with asterisks. Further, the Hosted Software may provide a feature the Customer can use to manually remove messages; Customer may also contact Quiq support when Customer wants to manually remove text in a message.  Customer acknowledges no automated method of detecting textual patterns is 100% accurate and that nonetheless, Customer agrees it is Customer’s obligation to refrain from storing or to remove credit card numbers, or other undesirable text, in whole or in part, from the Hosted Software.
   9. Feedback. Customer shall, and hereby does, grant Quiq a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Hosted Software any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Authorized End Users relating to the operation of the Hosted Software. At Quiq’s request and expense, Customer will execute documents and take such further acts as Quiq may reasonably request to assist it in acquiring, perfecting and maintaining its IP Rights in and other legal protections for the Feedback.
3. PROFESSIONAL SERVICES. Quiq may provide professional services (“Professional Services”) as set forth in a written Statement of Work (“SOW”) that accompanies an Order Form or is standalone. Each engagement will include a mutually agreed scope, fee, estimated timeline, assumptions, and deliverables. The delivery of Professional Services will depend on the availability and participation of the Customer and Customer’s resources as defined in the SOW. Professional Services include implementations, data migrations, integrations, customizations, and other manual and non-automated services.
4. PAYMENT TERMS.
   1. Fees. Customer must pay all undisputed fees that are due as set forth in Order Forms, plus applicable transaction-based taxes.
   2. Expenses. With approval in advance, Customer will reimburse Quiq for all standard and reasonable travel and related expenses. Customer agrees to pay expense reimbursements within 30 days of the date of invoice for such expenses.
5. WARRANTY/SERVICE LEVEL AGREEMENT and REMEDY.
   1. Limited Warranty. Quiq warrants to Customer that the Hosted Software will perform materially in accordance with its Documentation, provided that Quiq reserves the right to make changes to the Hosted Software, however the functionality of the Hosted Software as set forth in the Order Form and Documentation will not materially decrease during a paid term. Quiq warrants to Customer that the Professional Services will be performed by personnel with the necessary knowledge, skills, experience, qualifications, and resources to provide the Professional Services in accordance with this Agreement.
   2. Limited Remedy and Disclaimer. Customer’s exclusive remedy and Quiq’s sole obligation for breach of the warranty will be for Quiq to correct the deficient Hosted Software or Professional Services that caused the breach of warranty, or if Quiq cannot substantially correct the breach in a commercially reasonable manner, Customer may terminate the applicable Order Form in accordance with Section 9(c) and Quiq will refund all fees prepaid to Quiq under such Order Form for unused Hosted Software or unused Professional Services. QUIQ DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT HOSTED SOFTWARE OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE QUIQ TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE HOSTED SOFTWARE, QUIQ DOES NOT GUARANTEE THAT THE HOSTED SOFTWARE CANNOT BE COMPROMISED.
6. PRIVACY & SECURITY.
   1. Quiq Privacy Policy. Quiq maintains a privacy policy at https://quiq.com/privacypolicy, which Quiq may periodically update as long as there is no material reduction in the level of privacy, and Customer may register at https://quiq.com/privacypolicy to receive notice of updates.
   2. Data Processing Addendum (“DPA”). To the extent Quiq is a processor or subprocessor of Customer’s Personal Data subject to the General Data Protection Regulation (“GDPR”) and/or the California Consumer Privacy Act (“CCPA”), Quiq will process Customer’s Personal Data as set forth in this Agreement, and Order Form and subject to the Quiq Data Processing Addendum at https://quiq.com/DPA. Quiq’s use of Sub-processors is defined and set forth in the DPA and a list of Sub-processors is available at https://quiq.com/Sub-processors.
   3. Security. Quiq will maintain and enforce reasonable technical, administrative, and physical security procedures as set forth in Quiq’s security policy, which Quiq may periodically update as long as there is no material reduction in the level of security. In the event of a confirmed accidental or unlawful destruction, loss, alteration, or unauthorized disclosure or access of Customer Data (collectively a “Security Incident”), Quiq will provide Customer notice within twenty-four hours. Quiq will thereafter promptly provide Customer with notice of Quiq’s remediation plan of the Security Incident.
7. MUTUAL CONFIDENTIALITY.
   1. Definition of Confidential Information. “Confidential Information” shall be governed pursuant to this section 7. Confidential Information means all non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Quiq’s Confidential Information includes the Hosted Software, the Documentation, future product plans or roadmaps, the terms of this Agreement and all Order Forms.
   2. Protection of Confidential Information. The Receiving Party must use the same degree of care to protect the Confidential Information that it uses to protect its Confidential Information and in no event less than reasonable care, and not disclose or use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations within the scope of this Agreement. The Receiving Party must limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party with substantially similar confidentiality terms. Any breach by Receiving Party of the Disclosing Party’s Confidential Information could cause irreparable injury or harm to the Disclosing Party. The Disclosing Party may seek a court order to stop any breach or avoid any future breach.
   3. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use or access to the Confidential Information of the Disclosing Party. The Receiving Party may disclose Confidential Information to the extent required by law or court order but will reasonably endeavor to provide the Disclosing Party with advance notice to seek a protective order.
8. PROPRIETARY RIGHTS.
   1. Reservation of Rights by Quiq. The Hosted Software, Documentation, and other technologies and materials, including without limitation, deliverables from Professional Services, developed or provided by Quiq under this Agreement are the proprietary property of Quiq and its licensors. Quiq grants no rights unless expressly provided in this Agreement. A list of third-party open source materials used in the Hosted Software is set forth at http://quiq.com/opensource.
   2. Customer Data. All data, images, messages, and other materials, including without limitation Personal Data as defined by applicable data protection laws and regulations, provided from Customer, its Authorized End Users and End Users, (“Customer Data”) and processed in the Hosted Software remains the sole property of Customer. Customer grants Quiq a non-exclusive term license to use, host, modify, copy, and share the Customer Data solely for purposes of Quiq performing under this Agreement, including the exercise of these rights by Sub-processors and other authorized third parties including without limitation legally compelled disclosures to government agencies.
9. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
   1. EXCLUSION OF CERTAIN DAMAGES. NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED MATERIAL) ARISING UNDER OR RELATING TO THIS AGREEMENT AND ALL ORDER FORMS.
   2. LIMITATION OF LIABILITY. QUIQ’S MAXIMUM AGGREGATE LIABILITY FOR ALL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT AND ALL ORDERS (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY CUSTOMER TO QUIQ UNDER SUCH RELEVANT ORDER FORM DURING THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES.
   3. EXCEPTIONS. No exclusions or limitation will apply to liability arising out of either party’s indemnification and defense obligations or violation of the other party’s intellectual property rights under this Agreement.
10. TERM, TERMINATION AND SUSPENSION OF HOSTED SOFTWARE.
    1. Term. This Agreement continues for the duration of all Order Forms plus any no charge extensions pursuant to Section 2(g) of this Agreement until terminated by a party, as described below (Term). The term for each order (“Order Term”) will be set forth in the Order Form. Upon the end date of the Order Term, Customer’s rights to access or use the Hosted Software shall terminate.
    2. Termination for Convenience. Either party may terminate this Agreement or any Order Form without cause on 60 days’ notice. Licenses granted on a subscription basis will continue for the duration of the Order Term(s), subject to the terms of this Agreement. Quiq will not provide refunds or credits for any partial Order Term(s) if the Agreement or an Order Form is terminated by Customer for convenience.
    3. Mutual Termination for Material Breach. In the event of a material breach of this Agreement, the non-breaching party shall provide written notice to the breaching party. The breaching party will have thirty days to cure the breach; if upon thirty days after written notice the breach is uncured, the non-breaching party may terminate this Agreement upon written notice to the breaching party. Upon Customer’s termination for Quiq’s uncured breach as provided in this Section, Quiq shall refund any prepaid fees for unused Hosted Software covering the remainder of the Order Term.
    4. Return or Destroy Quiq Property Upon Termination. Upon termination or expiration of this Agreement for any reason, Customer must pay Quiq for any unpaid amounts, and destroy or return all property of Quiq. Customer will confirm its compliance with this requirement in writing upon request of Quiq.
    5. Return of Customer Data. Upon request of Customer within 30 days after the effective date of termination of the Order, Quiq will make available for download all Customer Data in the Hosted Software. After a 30-day period after the effective date of termination, Quiq has no obligation to maintain any Customer Data.
    6. Suspension of Hosted Software for Violations of Law or Policy. In addition to Quiq’s termination rights under 10.c, Quiq, may temporarily suspend access to the Hosted Software for Customer’s breach of this Agreement. Quiq will promptly restore access to the Hosted Software after the breach is cured.
11. INDEMNIFICATION.
    1. Defense of Third-party Claims. Quiq will indemnify, defend, or settle any third-party claims against Customer alleging that the Hosted Software (excluding the Customer Data) used in accordance with this Agreement violates a copyright, US patent, or trademark.
    2. Customer agrees to indemnify, defend or settle any third-party claims against Quiq, arising out of Customer’s (i) processing of Customer Data in the Hosted Software and (ii) use of the Hosted Software in breach of Customer’s Responsibilities and Acceptable Use.
    3. The indemnified party shall
       1. Promptly notify the indemnifying party of the claim in writing;
       2. Reasonably cooperate with the indemnifying party in the defense;
       3. Allow the indemnifying party to solely control the defense or settlement of the claim;
       4. May choose its own counsel if it pays for the cost of such counsel.
    4. The indemnifying party will pay the defense costs of the attorneys the indemnifying party hires to defend the indemnified party and will pay the indemnifying party’s negotiated settlement amounts and the court awarded damages, provided no settlement may be entered into by an indemnifying party without the express written consent of the indemnified parties, such consent not to be unreasonably withheld, if (1) the third party asserting the claim is a government agency; (2) the settlement involves the making of admissions by the indemnified parties; (3) the settlement does not include a full release of liability of the indemnified parties; or (4) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
    5. Remedies. For Quiq’s indemnification claim, Quiq, may modify the Hosted Software, procure the necessary rights, or replace it with the functional equivalent. If Quiq, determines that none of these are reasonably available, then Quiq, will terminate the Hosted Software and provide a refund of any prepaid fees for unused terminated Hosted Software.
    6. Exclusions. Quiq, has no obligation for any claim arising from:
       1. Quiq’s compliance with Customer’s designs, specification, instructions, or technical information;
       2. Modifications made other than by Quiq;
       3. A combination of the Hosted Software with other technology where the infringement would not occur but for the combination; or
       4. Technology not provided by Quiq.
    7. This section contains Customer’s exclusive remedies and Quiq’s sole liability for intellectual property infringement claims.
12. GOVERNING LAW. This Agreement will be governed by the laws of Montana (excluding its choice of law rules.) The parties’ consent to the exercise of exclusive jurisdiction by the state or federal courts in the State of Montana for any claim relating to this Agreement. Nothing in this Agreement prevents any party from seeking injunctive relief in any court of competent jurisdiction.
13. MISCELLANEOUS OTHER TERMS. This Agreement and all Order Form(s) and Statement(s) of Work constitute the entire Agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this Agreement is effective unless both parties sign it. Neither party may assign or transfer this Agreement or an Order Form or a Statement of Work to a third-party, except that the Agreement with all Order Forms and Statements of Work may be assigned as part of a merger, a sale of all or substantially all of the business or assets, a corporate reorganization of a party or by operation of law. The parties are independent contractors with respect to each other. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. If there is an inconsistency between terms of this Agreement and an Order Form or a Statement of Work, the Order Form or Statement of Work prevails. Any terms that by their nature survive termination or expiration of this Agreement, will survive, including without limitation Sections 2(h), 2(i), 4, 6(c), 7, 8, 9, 10(d), 10(e), 11, 12 and 13. Quiq may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of Quiq. For U.S. Federal Government users, the Hosted Software and Documentation are “Commercial Items”, as that term is defined at 48 C.F.R.2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, within the meaning of 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. The Commercial Computer Software and Documentation are licensed to the U.S. Government users as provided in FAR 12.212, and DFARS 227.7202-1(a), 227.7202-3(a), 227.7202-4, as applicable, only as Commercial Items, and only with those rights as are granted to all other end users pursuant to the terms of this Agreement.

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