Quillo Solutions Agreement

This Quillo Solutions Agreement is entered into by You and Quillo (“We” or “Us”) and each party agrees as follows: 

1. Welcome to Quillo. This agreement sets forth the terms and conditions that govern Your access to and use of Our Solutions. Please contact Quillo if You have any questions about this agreement.

2.  Ordering Procedures . We will provide You access to Our Solutions and deliver the Services detailed in the applicable Order Form. The Order Form, along with its attachments and the agreements incorporated by reference into the Order Form (including this Quillo Solutions Agreement), which may include statements of work for Services (each and “SOW”) constitutes the complete and entire agreement, and supersedes all  other agreements between us concerning Our Solutions. In the event of a conflict between this Quillo Solutions Agreement, an Order Form, or an SOW, the following order of precedence shall apply: (1) Order Form; (2) this Quillo Solutions Agreement; (3) SOW.

3.  Subscription Access And End User License Agreement
a. You and your authorized users’ use of the Solutions are governed by this Agreement and the applicable provisions of the End-User License Agreement (EULA) available at www.myquillo.com and on the Quillo Platform.
b. Access. You and Your authorized users may access and use the solutions and related documentation supplied to You by Us for Your internal business purposes during the term set forth in the Order Form. You shall not at any time, directly or indirectly, and shall not permit any authorized users to: (i) copy, modify, or create derivative works of the Solutions or documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Solutions or documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Solutions, in whole or in part; (iv) remove any proprietary notices from the Solutions or documentation; or (v) use the Solutions or documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
c. Suspension; Acceptable Use Policy. Notwithstanding anything to the contrary in this Agreement, We may suspend access to any Solution upon written notice if You fail to pay fees when due, violate this agreement, or violate Quillo’s EULA. Suspensions are rare and exercised in a manner proportionate to the severity of the violation. We agree to work with You in good faith to address any violations in a reasonable manner, to prevent similar violations, and to reinstate the affected Solutions as quickly as possible.  We will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that You or any authorized user may incur as a result of a suspension.

4.  Features Included In Solutions: We may add, change or discontinue features included in the Solutions.  Any features may be removed or modified without notice, and Your and authorized users’ sole and exclusive remedy is to discontinue use of the Solutions. 

5.  THIRD PARTIES AND USER INTERACTIONS: Quillo is not responsible for the actions, content, functionality, information, advertisements, or data provided by third parties (“Third Party Materials”), including other users.   You shall be responsible for securing any consents from third parties or authorized users required by Quillo or by applicable law, rule, or regulation.

6.  MONITORING USER ACTIVITY. Quillo may monitor user activity on its systems in connection with: (i) Your and authorized user compliance with this Agreement and the Acceptable Use Policy, (ii) supporting users, and (iii) developing and improving the Solution and Services.                                                                             

7.  PAYMENT.  

1. Payment shall be made by either check, ACH or credit card. If payment is made by check, Agency shall make check payable to “Quillo” at the following address:
   5454 Leone Drive
   Indianapolis, Indiana 46226
2. You agree to pay Quillo a monthly  (quarterly for Quillo Connect) subscription rate as set forth in the Order Form.  
3. You shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if You fail to pay for the Services when due, Quillo has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies. 

8.  TERM. This Agreement may be terminated by either party upon 30 days prior written  notice to the other party.   If terminated the Agreement will end according to the existing contract period. 

9.  INTELLECTUAL PROPERTY OWNERSHIP. 

(a) You acknowledge that, as between You and Quillo, Quillo owns all right, title, and interest, including all intellectual property rights, in and to the Solutions, the documentation, and any intellectual property provided to You in connection with the foregoing.

(b) Any works (whether or not copyrightable), ideas, discoveries, developments, derivative works, enhancements, inventions, patents, products, or other deliverables (collectively the “Work Product“) developed in whole or in part by Quillo in connection with the Services will be the exclusive property of Quillo. Upon request, You will execute all documents necessary to confirm or perfect the exclusive ownership of Quillo to the Work Product. 

(c) If You or any of your employees or contractors sends or transmits any communications or materials to Quillo by mail, email, telephone, or otherwise, suggesting or recommending changes to the Solutions, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“User Submissions”), Quillo is free to use such User Submissions.

10. CONFIDENTIALITY. 

1. From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving party at the time of disclosure; (iii) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (iv) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings.   Notwithstanding the foregoing, Quillo may use deidentified, aggregate, or statistical data which cannot be used to identify any individual person to improve Quillo’s products, or otherwise as permitted by applicable law in the context of Quillo’s business. 
2. You and your authorized users are responsible for maintaining the confidentiality of all usernames and/or passwords. Accounts, usernames, and passwords may not be transferred or shared without express prior written consent of Quillo.  Quillo will not be liable for any direct or indirect losses attributable to transferring, sharing or otherwise allowing access to username(s) and/or password(s), either with or without Your knowledge or for a failure to comply with this section. You may be held liable for losses incurred by Quillo or another party due to a third party impermissibly using a username and/or password of your authorized users. 
3. You shall immediately notify Quillo of any unauthorized use of your account or any other breach of security of its account or Confidential Information.  

11.  BREACH. The occurrence of any of the following shall constitute a material breach of this Agreement: 

1. Your failure to make a required payment when due.
2. The insolvency or bankruptcy of either party. 
3. The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency. 

12.  INDEMNITY: 

1. You shall indemnify, defend, and hold Quillo, its parents, partners, subsidiaries, affiliates, contractors, service providers, officers, members, directors, and employees harmless from and against all damages, losses, demands, liabilities, settlements, costs and expenses of any kind (including reasonable attorneys’ fees) (“Damages”) from any claim or demand made by Your employees, contractors, customers, care recipients, patients, clients, or any other third party relating to or arising out of (i) Your or your authorized users’ negligent or intentionally wrongful use, or misuse of the Solutions, (ii) Your or your authorized users’ violation of this Agreement (including any failure to obtain or provide any necessary consent and/or violation of applicable laws or regulations), (iii) the infringement by You or your authorized users or any third party using your account of any intellectual property or other right of any person or entity, including in connection with User Submissions, or (iv) Your breach or alleged breach of any agreement or policy between You and any other user but excluding any Damages, directly attributable to the gross negligence or willful misconduct of Quillo, its parents, partners, subsidiaries, affiliates, contractors, service providers, officers members, directors and employees. 
2. Quillo reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Quillo and fail to undertake the defense within fifteen (15) days’ notice.  You agree to cooperate with Quillo’s defense of these claims. You agree not to settle any matter without the prior written consent of Quillo. 

13. LIMITATION OF LIABILITIES, DISCLAIMERS. IN NO EVENT WILL QUILLO BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER QUILLO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL QULLO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE LESSER OF FIVE THOUSAND DOLLARS ($5,000) OR THE AMOUNTS PAID TO QUILLO HEREUNDER IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  

THE SOLUTIONS ARE PROVIDED “AS IS” AND QUILLO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. QUILLO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. QUILLO MAKES NO WARRANTY OF ANY KIND THAT THE SOLUTIONS WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

14. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.

15.  SEVERABILITY. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited. 

16.  AMENDMENT. This Agreement may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment. 

17.  ASSIGNMENT: Quillo may assign this Agreement or any of its rights hereunder, and Quillo may delegate any of its obligations under this Agreement. You may not assign this Agreement or any portion hereof, nor transfer or sub-license your rights under this Agreement, to any third party without the prior written consent of Quillo. 

18.  GOVERNING LAW. This Agreement shall be construed in accordance with the internal laws of the State of Indiana, without giving effect to conflicts of laws provisions. 

19.  NOTICE. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in writing in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address (including email address) as one party may have furnished to the other in writing. 

20.  WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. 

21. CONSTRUCTION AND INTERPRETATION. The rule requiring construction or interpretation against the drafter is waived. This Agreement shall be regarded as if it were drafted by both parties in a mutual effort. 

22.  COUNTERPARTS. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same agreement.  Facsimile transmission (or other form of electronic communication, such as .pdf) of a counterpart hereto shall constitute an original hereof.

23. Force Majeure. Neither party shall be liable for any failure to perform its obligations (except for obligations to pay money) under this agreement if prevented from doing so by a cause beyond such party’s reasonable control.

24. Statutory Exception. If You are a qualified educational or government institution, any part of this agreement which may be invalid or unenforceable against You because of applicable state or federal law (example: all or part of the Indemnity section) shall be deemed invalid or unenforceable, as the case may be, and instead construed in a manner most consistent with applicable governing law. If required by law this agreement will be governed by applicable state or federal law.

25. General . Except as specifically stated herein, remedies are cumulative. No purchase order or other ordering document that purports to modify or supplement the printed text of this agreement or any attached or referenced document shall add to or vary the terms of this agreement. All proposed modifications to this agreement, Order Form(s) or SOW(s) are objected to and deemed material unless otherwise mutually agreed to in writing. Order Forms may be executed electronically, and in counterparts, which together form one legal instrument. A copy of an executed Order Form and any purchases within a Solution and made by reliable means, including electronic acceptance, shall be considered an original. You may not assign Your rights or obligations under this agreement without Our written consent. Quillo performs its obligations under this agreement as an independent contractor, not as Your employee, partner, or agent. You have accepted this agreement by signing of an Order Form by Your duly authorized officer or officer representative.