Last Modified: 11.17.2021
Qiigo L.L.C. (“Qiigo”) requires users of its services, including any entity executing an order form (“Customer”) that references these terms to accept and adhere to these terms and conditions (the, “Agreement”). This Agreement governs the purchase and use of Qiigo’s services and is accepted by executing an order form that references this Agreement or by using or accessing Qiigo’s services. Qiigo may update this Agreement from time to time and Customer will have 30 days to reject the updated terms by providing written notice to Qiigo. If Customer continues to use or receive the services following such period, the updated Agreement will be deemed accepted.
1. Order Form. Qiigo provides online marketing services for franchise systems. Services will be ordered by Customer pursuant to executed order forms (each, an “Order Form”). Each Order Form will include the specific services being ordered (the, “Service”) and the associated fees and any additional terms as applicable. Each additional Order Form will be numbered sequentially (e.g. Order Form 1, 2, 3, etc.) and upon execution by both parties will be deemed an addendum hereto and will be subject to all of the terms and conditions herein. Any one of Customer’s subsidiaries, affiliates, or franchisees may also order services under this Agreement by entering into an Order Form signed by such subsidiary, affiliate, or franchisee and Qiigo and agreeing to be bound by the terms of this Agreement and such Order Form.
2.1. Accounts. Security. Access to or use of certain portions and features of the Service may require you to create an account (“Account”). Customer states that all information provided by it is current, accurate, complete, and not misleading. Customer further states that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its account(s), including password(s). Accounts are not transferrable. Customer agrees to promptly notify Qiigo if Customer becomes aware or suspects any unauthorized use of its accounts, including any unauthorized access or attempted access. Customer is responsible for all activities that occur under its account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to the accounts.
2.2. Restrictions on Use. In accessing or using the Service, Customer will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Service; (c) apply systems to extract or modify information in the Service using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Service any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) store data on the Service that is regulated by the HIPAA Privacy Rules or the PCI Data Standards (f) input or transmit through or to the Service any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Service or grant unauthorized access thereto; or (g) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (h) use the Service to compete with Qiigo in any way; or (i) permit any third party to use or access the Service other than your direct employees or contractors who are acting on your behalf.
2.3. Applicable Laws. Customer’s access to and use of the Service is subject to all applicable international, federal, state and local laws and regulations. Customer may not use the Service or any information data or Customer Content in violation of or to violate any law, rule or regulation. Ensuring Customer’s use of the Service is compliant with applicable laws is the responsibility of Customer.
2.4. Suspension of Service. Qiigo has the right to immediately suspend the Service if, following notice from Qiigo, Customer has failed to pay any amounts due and owing.
3. Intellectual Property.
3.1. Qiigo Content. Qiigo’s intellectual property, including content, websites, social media content, or any other deliverables created by Qiigo in the performance of the Service, and including its trademarks and copyrights and excluding any Customer Content contained therein, and any modification thereof, are and will remain the exclusive property of Qiigo and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.
3.2. Customer Content. As between Qiigo and Customer, all title and intellectual property rights in and to Customer branding, trade dress, trademarks and logos (“Customer Logos”) are owned by Customer. Customer grants Qiigo a limited right to use, reproduce, display, distribute and prepare derivative works from Customer Logos to provide the Services pursuant to and in accordance with this Agreement and the applicable Order Form. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data provided to Qiigo by or on behalf of Customer (“Customer Content”), and for obtaining all rights related to Customer Logos and Customer Content required by Qiigo to perform the Services.
3.3. Aggregated Data. Customer agrees that, subject to Qiigo’s confidentiality obligations in this Agreement, Qiigo may capture data and metrics regarding the use of the Service by Customer, and aggregate and analyze any such metrics and data collected (collectively, the “Aggregated Data”). Under no circumstances will Qiigo use the Aggregated Data in a way that identifies Customer or its users as the source of the data.
3.4. Feedback. Customer agrees that advice, feedback, criticism, or comments provided to Qiigo related to the Service are given to Qiigo and may be used by Qiigo freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Qiigo’s intellectual property.
4. Third Party Services. Qiigo will not be responsible and expressly disclaims any liability for any third-party services that Qiigo enables on your behalf in performance of the Service, or that Customer may use or connect to through the Service. If Customer activates any APIs or links to enable data sharing through the Service, Customer thereby authorizes Qiigo to send and receive Customer Content with any such activated third party service and represents and warrants to Qiigo that Customer has all appropriate right and title to grant such authorization.
5. Payment and Taxes.
5.1. Payment. Fees are set forth in the applicable Order Form (“Fees”), and such Fees shall include media spend. Qiigo will send invoices to the contact(s) provided in an Order Form. Unless otherwise set forth in the applicable Order Form, Fees are due and payable by Customer within 30 days of receipt of the invoice for such Fees. Undisputed amounts that are past due will be subject to a monthly charge of 1.5% per month or the maximum rate permitted by law, whichever is less. Customer agrees to pay all reasonable costs of collection in the event any amount is not paid when due. Qiigo, upon notice to Customer, which notice may be in the form of an invoice, will have the right to change Fees effective any time after the first year, which right will include without limitation the right to charge a Fee for new features of the Service or for features that have previously been offered at no charge. Unless otherwise noted in the Order Form, all Fees are payable in United States Dollars, and non-refundable.
5.2. Taxes. Qiigo Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature. Including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Qiigo may invoice taxes to Customer and Customer will pay such taxes, unless Customer provides Qiigo with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.3. Credit Card Payments. If a credit card is required or provided for the use of the Service, Customer will provide and maintain current and accurate contact and payment information with Qiigo. Customer authorizes Qiigo to debit the account or payment information provided to Qiigo for all Fees as they become due. If Customer disputes a debit or charge, Customer must notify Qiigo within seven calendar days of the date of such charge, if no such notification is received by Qiigo, Customer will be deemed to have accepted the debit or charge and waived any further dispute or claim related to such debit or charge. In the event Customer’s payment is declined, Qiigo may immediately suspend Customer’s account and access to the Services until updated payment information is provided and the past due balance is paid.
6. Term and Termination.
6.1. Term. “Commencement Date” means the date the marketing campaign in an Order Form commences. This Agreement will be effective as of the stated effective date in an initial Order Form (“Effective Date”) and remain in effect until (a) all executed Order Forms have expired or been terminated or (b) terminated by either party as permitted by this Agreement. Unless otherwise stated in the Order Form the Initial Term shall commence on the Effective Date and continue until the one year anniversary of the Commencement Date, thereafter, the Order Form will automatically renew for successive periods equal to the initial term, unless cancelled by either party in accordance with this Agreement.
6.2. Termination. Either party may terminate this Agreement and any active Order Form by providing 60 days’ written notice prior to the end of the then current term, such termination will be effective as of the end of the then current term. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms, if the breaching party has failed to cure such breach (if curable) within 30 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property.
6.3. Effects of Termination. Upon the expiration or termination of this Agreement for any reason (a) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement) and (b) any unpaid, undisputed amounts due through termination will become immediately due and payable.
6.4. Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations under this Agreement.
7. Confidential Information.
7.1. Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The [Service], all features and functions thereof and related pricing and product plans will be the Confidential Information of Qiigo.
7.2. Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.
7.3. Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.
8. Disclaimers. QIIGO DOES NOT WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT QIIGO WILL CORRECT ALL ERRORS OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. QIIGO IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICE OR ISSUES THAT ARISE FROM CUSTOMER CONTENT OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. QIIGO EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability. IN NO EVENT WILL QIIGO OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. QIIGO’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO QIIGO IN THE THIRTY DAYS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF QIIGO HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.
10. Indemnification. Customer agrees to defend and indemnify Qiigo and its affiliates from and against any legal action, demand, suit, or proceeding brought against Qiigo or its affiliates by a third party arising out of or related to the Customer Content or Customer’s use of the Service.
11. Publicity. Customer hereby consents to Qiigo identifying Customer as a customer by name and logo in Qiigo’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Qiigo will have 30 days to process Customer’s request.
12. Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Qiigo. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.
13. Notices. Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Qiigo, Customer will send notice via email to: [email protected] Qiigo will send notices to one or more contact(s) on file for Customer. Notices from Qiigo, other than for a breach of this Agreement may be provided within the Service.
14. Attorney’s Fees. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.
15. Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
16. No Third Party Beneficiaries. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
17. Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
18. Force Majeure. Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
19. Non-Disparagement. During the term of this Agreement and for two years from the date of the expiration or termination of this Agreement for any reason, each party agrees not to make any statements or comments or take any actions whatsoever which would in any way disparage the other party, or its respective affiliates, owners, managers, officers, directors, employees, or agent, or otherwise interfere with the other party’s business.
20. Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in all respects in accordance with the laws of the State of Georgia, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the federal courts of Georgia. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
21. Severability, Waiver and Amendment. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.
22. Counterparts, Entire Agreement and Order of Precedence. This Agreement or any Order Form may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement, together with any Order Form(s) states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of an Order Form; and (b) the terms and conditions of this Agreement. Any preprinted terms on any purchase order are hereby expressly rejected by Qiigo and will be of no force or effect.