QUIK Hosting Service Agreement

Last Updated: Nov. 24, 2018

The following Definitions section describes the terminologies that will be used throughout this document.

Definitions

QUIK Computing: A software company located in Raleigh, North Carolina, U.S.A, and registered as a S Corporation in the US state of North Carolina under the name of QUIK Computing, Inc. The company offers a number of software products and services to its customers including services that can be accessed online.

Ace Operator: An open-source software created by the founders of QUIK Computing. When installed and configured on a server connected to a network, it allows web-based chat capabilities to users on the network including the ability to obtain live support from a pool of representatives (operators). For more information, visit http://www.quik-j.com. QUIK Computing owns the software and enhances the software as needed. Parts of the software are contributed by the open-source community. QUIK Computing also owns and maintains additional software for provisioning and maintenance of Ace Operator as well as for performing analytics on chat activity. This additional software is not a part of the open-source offering and is an exclusive intellectual property of QUIK Computing.

QUIK Hosting Service: A software-as-a-service from QUIK Computing that enables companies and organizations to offer chat-based services to their end users from their web site. Note that QUIK Computing personnel do not participate in the chats themselves; rather, QUIK Computing just hosts the chat application software and additional management tools in a Data Center that can be accessed by the Customers from the Internet. The hosted software includes Ace Operator and the additional software that is used to run the service.

Customer: Refers to companies and organizations that use the QUIK Hosting Service to offer services like online customer support, counseling and other chat-based services. By using the service, customers do not have to install, configure or maintain any software on their own. Instead, customers pay a fee to QUIK Computing to use the service. Customers provide a link on their web site using which the end users can access the service. If customers use the service to provide online help, customer support or other similar services, the customers employ representatives who answer chat requests from end users and provide them the necessary services using chat as a communications mechanism. These representatives are also referred to as Operators.

End User: Refers to the users who access the chat services. The users are also referred to as the Visitors. The end users visit the Customer’s web site and click on the QUIK Hosting Service link to access chat functionality. Typically an end user gets connected to an Operator who provides the necessary services offered by the Customer. The chat functionality can be accessed from a web browser such as Google Chrome, Mozilla Firefox, Internet Explorer or similar.

Customer Data: Refers to any data held or generated by QUIK COMPUTING on behalf of the Customer and includes chat session transcripts, service hosting data, activity reports, user names, user account information and user email addresses.

Service Period: The Customer is required to select a period of service while signing up for the QUIK Hosting Service. The pricing for the service may vary depending on the service period selected. QUIK Computing sends the Customer an invoice for the entire duration of the service period, and the Customer must pay for the service in advance and in full in order for the service to start. Thereafter, near the end of a service period, QUIK Computing sends an invoice to the Customer for the next service period which also must be paid in advance and in full in order to continue the service.

Data Center: Refers to the physical location where the server(s) running the software components providing the QUIK Hosting Service are located. QUIK Computing leases server(s), storage and network infrastructure from a Third-Party Data Center hosted in the European Union. This Data Center is where the QUIK HOSTING SERVICE running software and Customer Data reside. For a list of Third-Party providers used by QUIK COMPUTING, please refer to the QUIK Computing Privacy Policy.

Third-Party: Another company providing a service that QUIK COMPUTING uses to provide its QUIK HOSTING SERVICE. For a list of Third-Party companies used by QUIK COMPUTING, please refer to the QUIK Computing Privacy Policy.

The Agreement

Carefully read the following terms and conditions of this agreement. By accessing and using the QUIK HOSTING SERVICE (“QUIK Hosting Service”) and ASSOCIATED SOFTWARE (“Ace Operator”) from QUIK COMPUTING (“QUIK Computing”), you (“Customer”) indicate the acceptance of the following terms and conditions, and you agree to be bound by them. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE THE QUIK HOSTING SERVICE OR ASSOCIATED SOFTWARE.

This agreement constitutes the complete and exclusive statement of the agreement between you and QUIK COMPUTING with respect to the QUIK HOSTING SERVICE and ASSOCIATED SOFTWARE and SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, oral or written, and any other communications relating to the subject matter of this agreement.

Now, therefore, in consideration of the mutual covenants set forth herein, QUIK COMPUTING and Customer agree as follows:

1. Order Acceptance, Payment

a.  All orders are subject to acceptance by QUIK COMPUTING. An order will be deemed accepted by QUIK COMPUTING when QUIK COMPUTING responds by email to the order with an invoice to Customer.

b.  Customer shall use a valid major credit card at a secure payment web site, an online payment service or other payment methods as agreed upon by both parties for paying in advance the applicable set-up fees and monthly fees as agreed upon by Customer and QUIK COMPUTING and as quoted and invoiced. Such fees and charges shall include, without limitation, the fees for connectivity to the QUIK HOSTING SERVICE, limited customization services, email support, bank fees and charges by any and all Third-Party providers whose services or materials may be included as part of the service. QUIK COMPUTING reserves the right to change the amount of, or basis for determining, any fees or charges and institute new fees and charges upon prior notice to Customer. QUIK COMPUTING shall honor originally quoted pricing for fees paid in advance. Prior to payment due date, QUIK COMPUTING shall email to Customer an invoice containing payment due date, amount due, the services included, the Service Period and information on how to make the payment. For online payment methods, the invoice specifies how to deposit the funds electronically, and Customer shall access the referenced secure web site with valid major credit card information, unless otherwise agreed upon, to make the payment. All fees must be paid in advance, in US Dollars (USD) only. Unless otherwise specified and agreed upon, Customer will be billed in advance for the agreed upon Service Period and must pay, in advance, for the entire Service Period. The fee is non-refundable. If payment by Customer’s credit card or other source of funds as agreed upon is denied, or Customer’s charge is returned to QUIK COMPUTING for any reason, including charge back, or Customer otherwise fails to make any payments owing to QUIK COMPUTING by payment due date, QUIK COMPUTING shall, at QUIK COMPUTING’s discretion, suspend or terminate access to the QUIK HOSTING SERVICE and/or terminate this Agreement, any time after payment due date when payment hasn’t been received, without prior notice to Customer. Customer’s right to use the QUIK HOSTING SERVICE is subject to any limits established by QUIK COMPUTING or by the issuer of Customer’s credit card or alternative source of funds if applicable. Customer shall be responsible for any and all taxes related to this Agreement.

2. QUIK Hosting Service

During the term of this Agreement, QUIK COMPUTING shall provide the following software and support services to Customer:

a.  Access to QUIK HOSTING SERVICE chat software running in a Data Center accessible via the Internet. Customer shall provide Operators who login to the system for the purpose of providing online help or services to End Users. No Ace Operator software installation or maintenance is required to be performed by Customer. A HTML 5.0 and Javascript-enabled web browser is required for accessing and using the QUIK HOSTING SERVICE. For complete functionality, a sound card is recommended for desktop computers and devices used by Operators.

b.  Access to the web-based management application via the Internet. Customers can use this application to perform routine administration of their groups and to access reports and data for their groups.

c.  Free support by email.

d.  Any other grandfathered support service specified in the invoice paid by the Customer.

3. Refunds

All fees are nonrefundable.

4. Third-Party Providers

Access to and use of QUIK HOSTING SERVICE requires Internet access service which is not included in the services provided by QUIK COMPUTING. Customer acknowledges that in order to access QUIK HOSTING SERVICE, Customer may have to agree to and execute agreements with Third-Party providers who may charge Customer fees and charges which are in addition to the fees and charges imposed by QUIK COMPUTING. This Agreement does not in any way relate to or modify the terms of such agreements.

QUIK COMPUTING makes use of other companies’ services in order to provide its QUIK HOSTING SERVICE. Any resulting Third-Party fees or charges are incorporated into the amount invoiced by QUIK COMPUTING, and the Customer will receive no other or additional fee or charge. For a list of Third-Party providers used by QUIK COMPUTING, please refer to the QUIK Computing Privacy Policy.

5. Rules and Regulations

By using the QUIK HOSTING SERVICE, Customer agrees to and will abide by the following rules and regulations:

a.  The service cannot be used for distributing pornography or other objectionable material, or for committing any criminal offenses.

b.  Malicious intent or action of any kind against QUIK COMPUTING servers, software, or other QUIK COMPUTING Customers subscribing to the QUIK HOSTING SERVICE is strictly prohibited. Attempting to guess user names and passwords of other service or trial operators and masquerade as their identity constitutes malicious intent.

6. License Grant

During the term of this Agreement, QUIK COMPUTING grants to Customer a non-exclusive, personal, non-transferable license to access and use the QUIK HOSTING SERVICE solely on and as part of QUIK COMPUTING’s World Wide Web site and servers. QUIK COMPUTING may modify the Ace Operator software at any time for any reason and may provide modified versions of the QUIK HOSTING SERVICE to Customer without any additional charges for such changes.

7. Intellectual Property Rights

Customer acknowledges and agrees that the QUIK HOSTING SERVICE constitutes confidential and proprietary information of QUIK COMPUTING and its licensors and embodies trade secrets and intellectual property of QUIK COMPUTING and its licensors protected under United States copyright and other laws and international treaty provisions. Customer further acknowledges that all right, title, and interest in and to all parts of the QUIK HOSTING SERVICE, including, without limitation, associated intellectual property rights, are and shall remain with QUIK COMPUTING and its licensors. Conversely, all chat transcripts and any other data generated by the Ace Operator software as a result of Customer user activity (administrator, operator or End User), is owned by and remains the private and intellectual property of the organization that generated the data. Customer shall not, and shall cause its employees and agents not to, disclose or transfer any portion of the QUIK HOSTING SERVICE to any other entity. Customer further agrees not to translate, de-compile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, sub-license, distribute, re-market or otherwise dispose of any portion of the QUIK HOSTING SERVICE. Customer hereby acknowledges that, if QUIK COMPUTING at any time or from time to time performs any customizations or modifications to QUIK HOSTING SERVICE, all rights and interests to such customizations or modifications shall be the sole property of QUIK COMPUTING.

8. Term and Termination

a.  This Agreement shall have an initial term of one (1) Service Period and shall thereafter automatically renew for each successive paid Service Period, until terminated as described below. No refund of fees shall be given upon termination by either party for any reason. This Agreement and Customer’s access to the QUIK HOSTING SERVICE shall terminate as follows:

i)  Customer may terminate at any time, without prior notice. QUIK COMPUTING may terminate upon one hundred and twenty (120) days prior notice. The termination notice from QUIK COMPUTING may be received at any time during the Customer’s active Service Period.
ii)  QUIK COMPUTING may immediately and without prior notice terminate upon a violation by Customer of QUIK COMPUTING’s Rules and Regulations;
iii)  QUIK COMPUTING may terminate immediately and without prior notice in accordance with Section 1; and
iv)  QUIK COMPUTING may terminate immediately if, after 15 days prior notice to Customer, Customer has failed to correct any breach of this Agreement.

b.  In cases where Customer’s service has been cancelled by Customer per Section 8(a)(i), and Customer is requesting reactivation, QUIK COMPUTING, at its option, may reactivate the same account, only if the account had been cancelled less than thirty (30) days prior. Otherwise, or after thirty (30) days, Customer will be required to set up a new account and must pay all associated set-up fees and is subject to a new fee structure if QUIK COMPUTING has changed the fee structure for new Customers.

c.  To cancel QUIK HOSTING SERVICE, Customer should send a notification via email to support@quik-j.com
A confirmation reply sent by QUIK COMPUTING constitutes receipt of cancellation notification.

d.  Sections 1, 7, 8, 9, 10, 11, 12, 13, 14 and 15 shall survive any termination of this Agreement.

9. Exclusion of Warranties

QUIK COMPUTING PROVIDES THE QUIK HOSTING SERVICE ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose.

While QUIK COMPUTING strives to the fullest extent possible to maintain the QUIK HOSTING SERVICE, many factors are not within QUIK COMPUTING’s control. Therefore, QUIK COMPUTING does not warrant, and is not responsible for any loss, nondelivery or misdelivery of transmitted data, service delays, lack of service access, slow response time, or service interruptions or errors, due to circumstances beyond QUIK COMPUTING’s control, viruses or other Third-Parties. While QUIK COMPUTING uses only reputable Third-Party providers who claim to abide by all applicable laws and regulations, and keeps use of Third-Party providers to a minimum, this disclaimer and waiver shall apply equally to any and all Third-Party providers used by QUIK COMPUTING. For a list of Third-Party providers used by QUIK COMPUTING, please refer to the QUIK Computing Privacy Policy.

Customer Data is confidential information owned by the Customer and QUIK COMPUTING will: (i) hold such data in confidence, and not disclose or reveal to any person or entity without the clear and express prior written consent of a duly authorized representative of Customer; and (ii) not use or disclose such data for any purpose at any time. To protect Customer Data, the QUIK HOSTING SERVICE runs only in a GDPR-compliant, EU-hosted Data Center, and the Customer Data never leaves the EU. Additionally, the ASSOCIATED SOFTWARE used by the QUIK HOSTING SERVICE contains numerous safety and security features. For a list of these safety and security features, please refer to the QUIK Computing Privacy Policy. To protect transmission of Customer Data, the QUIK HOSTING SERVICE uses only secure HTTPS protocol for communication between the Data Center and the users (administrator, operator and End User). Customer Data remains within the secured Data Center and can only be accessed via the secured (HTTPS) Ace Operator management application. Under no circumstance does Customer Data ever get sent out of the QUIK HOSTING SERVICE server via email. While QUIK COMPUTING makes every effort possible to secure Customer Data on the server and during transmission to Customer personnel, due to the ever-evolving nature of cyber security threats, no data can be 100% guaranteed safe, and therefore QUIK COMPUTING cannot be held responsible for accidental or deliberate breach of Customer Data before, during or after transmission of data to Customer personnel.

While QUIK COMPUTING makes every attempt to secure Customer’s Data and service from others, it is unlikely but possible for someone to guess operator or administrator user names and passwords, and masquerade as one of the Customer’s operators or obtain Customer Data by accessing the Ace Operator management application. Customer is responsible for ensuring secure user account practices to prevent such an occurrence. Sharing of accounts and/or passwords is not a secure user account practice. If Customer chooses to share user accounts and/or passwords, then any security breach of user accounts and resulting exposure of private and confidential data is the Customer’s sole responsibility and liability.

In the event of a catastrophic system failure, loss of Customer Data is limited to the 24 hours immediately preceding the catastrophic failure. Access to Customer Data will be restored once the outage ends.

While QUIK COMPUTING makes reasonable and standard efforts to accommodate varying types of user (operator and End User) computer systems, web browsers, and devices, QUIK COMPUTING provides no guarantee to Customer that the service will work with all user systems and browsers, especially older ones.

QUIK COMPUTING provides no warranty to Customer regarding the accuracy of usage statistics, which QUIK COMPUTING may provide at its discretion.

No advice or information given by a QUIK COMPUTING representative shall create a warranty or serve as an amendment to this agreement.

QUIK COMPUTING has the right to change prices, or add or delete product features of any existing product or service. QUIK COMPUTING shall honor originally quoted pricing for fees paid in advance. The right to change products or services extends to any software supporting a product or service. QUIK COMPUTING has the right to discontinue products or services and the right to reassign the IP address of the QUIK HOSTING SERVICE EU-hosted production server which may require modification to all QUIK Hosting related HTML tags (buttons) on Customer’s web site (such as the Ace Operator “Live Help” button). QUIK COMPUTING also has the right to deactivate Customer’s service in accordance with Section 8(a)(i). Except for certain products and services specifically identified as being offered by QUIK COMPUTING, QUIK COMPUTING does not control any materials, information, products, or services on the Internet. The Internet contains unedited materials, some of which are sexually explicit or may be offensive to Customer. QUIK COMPUTING has no control over and accepts no responsibility for such materials. Customer assumes full responsibility and risk for use of the services and the Internet and is solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information, and the quality and merchantability of all merchandise provided through the service or the Internet.

10. Limitation of Liability and Damages

THE TOTAL AGGREGATE LIABILITY OF QUIK COMPUTING TO CUSTOMER SHALL BE LIMITED TO THE AMOUNT PAID TO QUIK COMPUTING BY CUSTOMER HEREUNDER DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM IN WHICH QUIK COMPUTING IS LIABLE TO CUSTOMER. IN NO EVENT SHALL QUIK COMPUTING BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED UPON BREACH OF CONTRACT, TORT, OR OTHERWISE AND WHETHER OR NOT QUIK COMPUTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Confidentiality

Customer acknowledges that by reason of its relationship with QUIK COMPUTING, it may have access to certain information and materials relating to QUIK COMPUTING’s business, customers, software technology and marketing which QUIK COMPUTING treats as confidential (collectively “Confidential Information”). Customer shall: (i) hold in confidence, and not disclose or reveal to any person or entity, any Confidential Information without the clear and express prior written consent of a duly authorized representative of QUIK COMPUTING; and (ii) not use or disclose any of the Confidential Information for any purpose at any time, other than for the limited purpose of performance under this Agreement. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for two (2) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.

12. Indemnification

Customer shall indemnify and hold QUIK COMPUTING harmless against all third party claims, demands, suits, actions, judgments, losses, costs, damages (direct, indirect and consequential), attorney’s fees and expenses that Customer may sustain or incur by reason of any breach or alleged breach of any term or condition of this Agreement (including reasonable attorney’s fees) and for any act or omission of Customer or its clients which are in any way related to the QUIK HOSTING SERVICE.

13. Export Control

Customer agrees to comply with all applicable laws, rules and regulations relating to the export, re-export or trans-shipment of the QUIK HOSTING SERVICE within or outside of the region of operation.

14. Force Majeure

Either party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.

15. Miscellaneous

Customer may not assign its rights or delegate any of its duties under this Agreement without the prior written consent of QUIK COMPUTING, and any attempted assignment or delegation without such consent shall be void. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of partners or joint ventures. QUIK COMPUTING may subcontract any work, obligations or other performance required of QUIK COMPUTING under this Agreement without consent of Customer provided QUIK COMPUTING shall ensure continuity in services rendered under this Agreement which if not so done shall amount to material breach of the terms of the Agreement. In addition to the termination of this agreement, all notices provided hereunder sent by email, mail or certified mail to QUIK COMPUTING, will be effective upon receipt. QUIK COMPUTING has the right to amend or modify the Agreement from time to time, and will provide notification and content of the new Agreement to all active Customers.

The Agreement shall be governed by the laws of North Carolina, without giving effect to applicable conflict of laws provisions. The federal and state courts located in Raleigh, North Carolina alone have jurisdiction over all disputes arising out of or related to this Agreement and the QUIK HOSTING SERVICE. Customer consents to the personal jurisdiction of such courts sitting in North Carolina with respect to such matters or otherwise between Customer and QUIK COMPUTING, and waives Customer’s rights to removal or consent to removal. In the event any litigation or other proceeding is brought by either Party in connection with this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to attempt recovery from the other Party of attorneys’ fees and expenses incurred by such prevailing Party in such litigation.

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