MSA

Qsource Quality Link Master Services Agreement

This Master Services Agreement governs customer’s acquisition and use of Qsource services. If customer registers for a free trial of Qsource services or for free services, the applicable provisions of this Agreement will also govern that free trial or those free services. By accepting this Agreement, by (1) clicking a box indicating acceptance, (2) executing an order form that references this Agreement, or (3) using free services, customer agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “customer” shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the services.

WHEREAS, Qsource provides its customers certain professional services, including training material and software access; and

WHEREAS, Customer desires to access and use the professional services, software, and training material, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Definitions.
1. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Terms of Use, attached hereto as Exhibit A and incorporated herein. Individual Authorized Users shall also agree to such Terms of Use via clickthrough when accessing the Site.
2. "Agreement" means and includes this Master Services Agreement, the Terms of Use, and all Exhibits and Schedules attached thereto.
3. "Qsource IP" means the Site, Service, Content, and any other intellectual property provided to or accessed by Customer or any Authorized User in connection with the Professional Services, whether accessed through the Site or otherwise. For the avoidance of doubt, Qsource IP includes any information, data, or other content derived from Qsource's monitoring of Customer's access to or use of the Services, but does not include Authorized User Data.
4. "Professional Services" means the Quality Link services more specifically described in the Statement of Work including the Site, Service, and Content, attached hereto as Exhibit B and incorporated herein.
  1. "Third-Party Products" means any third-party branded products described in Exhibit B and provided with or incorporated into the Professional Services.
  2. Access to Professional Services. Subject to and conditioned on Customer's payment of Fees and compliance with the terms and conditions of this Agreement, Qsource hereby grants Customer and its designated Authorized Users a non-exclusive, non-transferable right or license to access and use the Professional Services and Qsource IP during the Term. Such use is limited to Customer's internal purposes. Qsource shall provide to Customer the necessary credentials to allow Customer to access the Professional Services. Customer acknowledges and agrees that Site availability is not guaranteed, but Qsource will use commercially reasonable efforts to maintain Site availability. The total number of Authorized Users will not exceed two (2), except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
  3. Access and Use Restrictions. Customer shall not use the Professional Services for any purposes beyond the scope of the access granted by this Agreement. Customer shall ensure that all users accessing the Services do so using a valid business email address associated with Customer’s organization. Use of personal email accounts (including but not limited to Gmail, Yahoo, Outlook.com, or similar domains) is expressly prohibited. Customer is solely responsible for restricting and managing access to the Services through its organizational email accounts and for all activities occurring under such accounts.
  4. Reservation of Rights. Qsource reserves all rights not expressly granted to Customer and its Authorized Users in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Qsource IP.
  5. Suspension. Notwithstanding anything to the contrary in this Agreement, Qsource may temporarily suspend Customer's and any Authorized User's access to all or any portion of the Professional Services if: (i) Qsource reasonably determines that (A) Customer, or any Authorized User, is using the Qsource IP for fraudulent or illegal activities; (B) Customer, or any Authorized User, is using the Qsource IP in a manner that violates user terms adopted by Qsource; (C) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) Qsource's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Qsource has suspended or terminated Qsource's access to or use of any third-party services or products required to enable Customer to access the Professional Services; or (iii) in accordance with Section 4(a) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Qsource will have no liability for any damages, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
5. General. Customer is responsible and liable for all uses of the Professional Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer. Customer shall require all Authorized Users to agree to these terms via clickthrough prior to accessing the Site and shall cause Authorized Users to comply with such provisions.
6. Third-Party Products In connection with the availability of the Professional Services, Qsource may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to independent terms and conditions which shall be incorporated into the Terms of Use through revisions posted on the Site. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer and its Authorized Users may not use such Third-Party Products, limiting access to the Professional Services.
Fees and Payment.
1. Fees. Customer shall timely pay Qsource the fees ("Fees") as set forth in QsourceEd payment portal unless otherwise specified in writing. All Fees must be paid monthly in advance by credit card or other method available in QsourceEd payment portal unless otherwise specificed in writing. Customer shall authorize Qsource to charge all amounts owed by Customer to the credit card.
2. (b) Late Payments. If Customer fails to timely pay Fees, without limiting Qsource's other rights and remedies: (i) Qsource may charge interest on the past due amount at the rate of one and one-half percent (1.5%) per month or, if lower, the highest rate permitted under applicable law; and (ii) if such failure continues for seven (7) calendar days or more, Qsource may suspend Customer's and its Authorized Users' access to any portion or all of the Professional Services until such amounts are paid in full.
3. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Qsource's income.
Confidential Information. 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, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). For the avoidance of doubt, Confidential Information includes all Qsource IP, Content, proprietary methodologies, software, algorithms, and technical specifications related to the Professional Services. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) 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 and advisors 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. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.
Intellectual Property Ownership; Feedback.
1. Qsource IP. Customer acknowledges that, as between Customer and Qsource, Qsource owns all right, title, and interest, including all intellectual property rights, in and to the Qsource IP.
2. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Qsource by mail, email, telephone, or otherwise, suggesting or recommending changes to the Qsource IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Qsource is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Qsource on Customer's behalf, and on behalf of its employees, contractors, and/or agents, all right, title, and interest in, and Qsource is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Qsource is not required to use any Feedback.
Disclaimer
1. Qsource does not make any representations, warranties, or guarantees of any kind regarding the Professional Services, including without limitation the availability of the Professional Services. THE PROFESSIONAL SERVICES ARE PROVIDED "AS IS" AND QSOURCE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. QSOURCE 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. QSOURCE MAKES NO WARRANTY OF ANY KIND THAT THE PROFESSIONAL SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S 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.
Indemnification. Customer shall indemnify, hold harmless, and, at Qsource's option, defend Qsource from and against any losses, damages, liabilities, and costs (including attorneys' fees) resulting from any claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any third-party claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Professional Services in a manner not authorized by this Agreement; (iii) use of the Site; or (iv) breach of this Agreement, provided that Customer may not settle any third-party claim against Qsource unless Qsource consents to such settlement, and further provided that Qsource will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
Limitations of Liability. IN NO EVENT WILL QSOURCE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY VIOLATIONS, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, AGGRAVATED OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, PROFITS OR ANTICIPATED SAVINGS; (c) LOSS OF GOODWILL, OPPORTUNITIES, OR REPUTATION; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER QSOURCE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL QSOURCE'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 TOTAL AMOUNTS PAID TO QSOURCE UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. Any claims, damages, losses, costs, liabilities or expenses (including attorneys' fees) arising out of, based on, or relating to this Agreement not presented to Qsource within one (1) year from the occurrence there of shall be deemed waived.
Term and Termination.
1. Term. This Agreement shall commence on the Effective Date and continue for twelve (12) months from such date (the "Initial Term"). This Agreement will automatically renew for successive, additional twelve (12) month terms unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
2. Termination. In addition to any other express termination right set forth in this Agreement:
  1. Except as set forth in Sections 10(b)(ii) and (iii) below, if either Party materially breaches any provision of this Agreement, the other Party may provide written notice to the non-performing Party describing such material breach. If the non-performing party fails to cure such material breach within thirty (30) days of such notice and while such material breach remains outstanding, this Agreement may be terminated immediately by the non-breaching Party upon written notice.
  2. Qsource may terminate this Agreement immediately upon written notice to Customer if Customer: (A) fails to pay any amount due hereunder in accordance with the requirements of this Agreement; or (B) breaches any of its obligations under Section 2(b) or Section 5;
  3. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; (E) the other Party is excluded from participation in Medicare, Medicaid, or any other government health care program; or (F) the other Party is convicted of a criminal offense related to any federal or state health care program.
3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, all licenses granted to Customer by this Agreement shall be immediately terminated and Customer shall immediately discontinue use of the Qsource IP, including but not limited to the Site, Service, and Content and, without limiting Customer's obligations under Section 4, Customer shall delete, destroy, or return all copies of the Qsource IP and certify in writing to the Qsource that the Qsource IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
4. Survival. Any provisions of this Agreement that impose an obligation after termination of this Agreement, including without limitation this Section 10(d) and Sections 1, 4, 5, 6, 7(a), 8, 9, and 0 shall survive any termination or expiration of this Agreement and continue to be binding upon the Parties.
Dispute Resolution. Any dispute or controversy arising out of or relating to this Agreement (or any amendment or renewal thereof) shall be finally determined by binding arbitration to be held in Memphis, Tennessee and shall be conducted in accordance with the rules and regulations of the American Arbitration Association ("AAA"). Notwithstanding the foregoing, this section shall not limit or restrict the Parties with respect to matters for which an injunction, restraining order, writ of mandamus, specific performance or other equitable relief may be sought by a Party hereunder. Judgment on the award rendered by the arbitration process may be entered and enforced by any court having jurisdiction thereof. Any arbitration hereunder shall be treated as confidential by all parties thereto, except as otherwise provided by law or as otherwise necessary to enforce any judgment or order issued by the arbitrators. In any dispute or controversy that arises between the Parties relating to or arising from this Agreement, each Party agrees to be separately responsible for its respective attorneys' fees and all other legal costs and expenses, notwithstanding the settlement, outcome, or final resolution of any such dispute or controversy.
Miscellaneous.
1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth in the Exhibit B (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). [All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid.]
3. Force Majeure. Neither Party shall be considered to be in default of this Agreement if delays in, or failure of performance shall be due to events of force majeure the effect of which, by the exercise of reasonable diligence, the non-performing Party could not avoid. The term "force majeure" shall mean any event which results in the prevention or delay of performance by a Party of its obligations under this Agreement and which is beyond the control of the non-performing Party. It includes, but is not limited to, vandalism, sabotage, terrorism, epidemics, war, strikes, cyberattacks, work slowdowns, fire, flood earthquake or other “acts of God” or natural or meteorological causes which prevent the parties from performing their responsibilities hereunder. If either Party is unable to perform its obligations under this Agreement as a result of an event of force majeure, the non-performing Party shall promptly notify the other Party in writing of the beginning and estimated duration of any anticipated period of delay and thereafter neither Party shall be obligated to perform their respective obligations under this Agreement that are affected by the force majeure conditions (and the associated payment obligations) during the period of force majeure. Notwithstanding the foregoing, a force majeure event shall not excuse Customer from its payment obligations as set out in Paragraph 5.
4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
5. Severability. If any provision of this Agreement is held to be unenforceable for any reason, such unenforceability will not affect any other term or provision of this Agreement.
6. Governing Law; Submission to Jurisdiction. This Agreement and the rights of the Parties hereunder, shall be deemed to have been made and entered in Tennessee and shall be interpreted and determined in accordance with the laws of the State of Tennessee, without consideration of conflict of law principles.
7. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Qsource. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
8. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
9. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.