FastQlik Terms of Service

This Hosted Services Clickwrap Agreement ("Agreement"), effective as of the last date the Order is signed by either party (the "Effective Date"), is entered into by and between you and FastQlik LLC a State of Georgia [corporation/limited liability company] having a place of business at 1290 Middlesex Ave NE, Atlanta, GA 30306 ("FastQlik" or "our" or "we" or "us").

Our Privacy Policy, available at www.fastqlik.com/privacy, is incorporated by reference into this Agreement. Please read this Agreement and the Privacy Policy carefully before you access the Services (as defined below), as this Agreement form a binding legal agreement between you and Fastqlik.

This Agreement may apply to you individually, the business or other legal entity user you represent, or both. If you are using Services on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into this Agreement on behalf of such entity. By accessing, registering for or using the Services, you: (1) acknowledge that you have read and understand this Agreement; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us. As used in this Agreement and unless separately identified as applicable to either an individual or entity, "you" and "your" and "Customer" refer to both you individually and the entity on behalf of which you are entering into this Agreement.

IF YOU DO NOT AGREE TO ALL OF THIS AGREEMENT, DO NOT USE THE SERVICES. YOUR USE OF OUR SERVICES REQUIRES YOUR ACCEPTANCE OF THIS AGREEMENT AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN, WHICH INCLUDES THE FASTQLIK PRIVACY POLICY.

The parties agree as follows:

1. DEFINITIONS

Capitalized terms used but not defined elsewhere in this Agreement have the meanings set forth below.

1. "Customer Data" means data and information submitted by or for Customer into the Hosted Services.
2. "Documentation" means available user guides, documentation, and specifications for the Services, as may be updated by Fastqlik from time to time.
3. "Hosted Services" means the applicable software services to be provided by Fastqlik to Customer over the internet through a web browser or other Fastqlik authorized application, as further described and set forth in an Order and this Agreement.
4. "Order" means an order form specifying the Service(s) to be provided hereunder that is executed by the parties, including any addenda and supplements thereto.
5. "Professional Services" means any consulting, implementation, configuration or other professional services that are described in an Order. Hosted Services are not Professional Services.
6. "Services" means the Hosted Services and Professional Services. "Services" excludes Customer Data.

2. SERVICES

1. Orders for Services. Fastqlik will make the Services available to Customer in accordance with the terms and conditions of this Agreement and any applicable Order. In the event of a conflict between the terms of this Agreement and the terms of an Order, the terms of this Agreement will govern to the extent of the conflict unless the Order expressly states that it is intended to modify the conflicting terms of this Agreement, in which case the terms of the Order will govern to the extent of the conflict.
2. Hosted Services. Fastqlik will provide to Customer the Hosted Services specified in an Order. Customer will identify to Fastqlik, in the manner specified by Fastqlik from time to time, its employees that require access to the Hosted Services. Fastqlik will provide standard support for the Hosted Services to Customer at no additional charge (including new releases, upgrades, updates, patches, and bug fixes as they may, from time to time, be developed and made generally available as part of the Services). Fastqlik will provide the Hosted Services in accordance with the service level agreement set forth in Schedule 1.
3. Professional Services. If specified in an Order, Fastqlik will provide Professional Services to Customer in accordance with the applicable Order. Fastqlik will own any improvements, enhancements, configurations, or other derivative works to the Hosted Services made by Fastqlik in connection with the Professional Services.
4. Service Delivery. Fastqlik may provide the Services from any facility and may from time to time transfer any or all of the Services being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing those Services. Fastqlik may, in its sole discretion, make any changes to any Service that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Fastqlik's products or services to its customers, (b) the competitive strength of, or market for, Fastqlik's products or services, (c) such Services' cost efficiency or performance, or (ii) to comply with applicable law.
5. Protection and Use of Customer Data. Fastqlik will maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include measures for preventing access, use, modification, or disclosure of Customer Data by Fastqlik personnel except: (a) to provide the Services, prevent or address service or technical problems, or as described herein; (b) as compelled by law in accordance with Section 6.3 (Compelled Disclosure) below; or (c) as Customer expressly permits in writing. Customer shall protect and maintain the confidentiality of any logins, passwords or other access credential supplied by Fastqlik for use with the Services. Customer is liable for all authorized and unauthorized uses of such account credentials.

3. USE OF SERVICES AND CONTENT

1. Customer Responsibilities. Customer will: (a) be responsible for its and its contractors' compliance with this Agreement and for all their acts and omissions of as if they were Customer's acts or omissions; (b) be responsible for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Fastqlik promptly of any unauthorized access or use of which Customer becomes aware; (d) use Services only in accordance with this Agreement, any applicable Order, and the Documentation; (e) comply with all laws applicable to Customer's use of the Services; and (f) promptly and fully cooperate with Fastqlik and make the necessary personnel and resources available to Fastqlik for Fastqlik to deliver the Services, as reasonably requested by Fastqlik.
2. Usage Restrictions. Customer will not: (a) use the Hosted Services outside the licensing metrics set out in the applicable Order (e.g., per user limitations), if any; (b) make any Service available to, or use any Service for the benefit of, anyone other than Customer; (c) lease, license, sell, sublicense or otherwise transfer its access to or use of the Services, or include any Service in a service bureau or outsourcing offering; (d) use or permit use of any Service in contravention of Section 3.4 (Prohibited Uses); (e) interfere with or disrupt the integrity or performance of any Service; (f) attempt to gain unauthorized access to any Service; (g) permit direct or indirect access to or use of any Service in a way that circumvents a usage limit; (h) copy a Service or any part, feature, function, or user interface thereof; (i) copy any Service except as permitted herein or in an Order or the Documentation; (j) frame or mirror any part of any Service; (k) access any Service in order to build a competitive product or service; or (l) reverse engineer any Service (to the extent this restriction is permitted by law).
3. Technical Requirements. Customer will need certain equipment, software, and Internet access to be able to access the Hosted Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely Customer's responsibility. Customer is responsible for ensuring that such equipment is compatible with the Services and complies with all configurations and specifications provided by Fastqlik, which may be amended from time to time. Fastqlik neither represents nor warrants that the Hosted Services will be accessible through all web browser releases or used with all operating systems.
4. Prohibited Uses. Customer will not and will not permit others in using the Services to: (a) defame, abuse, harass, stalk, threaten any individual or infringe or otherwise violate the legal rights (such as rights of privacy, publicity and intellectual property) of others or Fastqlik; (b) distribute any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, or otherwise objectionable material or information (including any unsolicited commercial communications); (c) engage in or encourage any conduct that could constitute a criminal offense or give rise to civil liability for Fastqlik; (d) misrepresent or in any other way falsely identify Customer's identity or affiliation, including through impersonation or altering any technical information in communications using the Services; (e) transmit or upload any material through the Services that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Fastqlik's, or any other person's or entity's, network, computer system, or other equipment; (f) interfere with or disrupt the Services, networks or servers connected to the Fastqlik systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through the Services; (g) attempt to gain unauthorized access to the Services, other Fastqlik customers' computer systems or networks using the Services through any means; or (h) interfere with another person's use of the Services. Fastqlik has no obligation to monitor Customer's use of the Services. However, Fastqlik reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.
5. Removal of Content. If Fastqlik is required by any third-party rights holder to remove any content or information, or receives information that any content or information provided to Customer may violate applicable law or third-party rights, Fastqlik may remove such content or information and/or notify Customer that it must discontinue all use of such content or information, and to the extent not prohibited by law, Customer will do so and promptly remove such content or information from its systems.

[Schedule 1]

Service Level Agreement

1. Service Levels. Subject to the terms and conditions of this Agreement, Fastqlik will use commercially reasonable efforts to make the Hosted Services Available (as defined below) at least ninety-nine percent (99.0%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a "Service Period"), excluding unavailability as a result of any of the Exceptions described below in this Section 1 (the "Availability Requirement"). "Service Level Failure" means a material failure of the Hosted Services to meet the Availability Requirement. "Available" and "Availability" mean the Hosted Services are available for access and use by Customer. For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement, and neither will the Hosted Services be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer to access or use the Hosted Services that is due, in whole or in part, to any: (a) access to or use of the Hosted Services by Customer, or using Customer's access credentials, that does not strictly comply with this Agreement; (b) Customer's delay in performing, or failure to perform, any of its obligations under this Agreement; (c) Customer's Internet connectivity; (d) force majeure event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Fastqlik pursuant to this Agreement; (f) scheduled downtime for routine maintenance of which Fastqlik has provided Customer at least 72 hours' prior notice via email or though the Hosted Services; or (g) disabling, suspension or termination of the Services pursuant to the Agreement.
2. Service Level Failures and Remedies. In the event of a Service Level Failure, Fastqlik will issue a credit to Customer in the amount set forth in the table below, measured as a percentage of the monthly fees (or pro rata equivalent thereof) for the applicable Hosted Services paid or payable for the Service Period the Service Level Failure occurred (each a "Service Credit").

   Availability	Service Credit (as percentage of monthly fees)
   99.0% - 100%	0%
   96.0% - 98.9%	5%
   94.0% - 95.9%	10%
   90.0% - 93.9%	15%
   < 90.0%	25%

   Notwithstanding the foregoing, Fastqlik has no obligation to issue any Service Credit unless Customer: (i) reports the Service Failure to Fastqlik immediately upon becoming aware of it, and (ii) requests such Service Credit in writing within 10 days of the Service Level Failure. Additionally, in no event will a Service Credit for any Service Period exceed 25 percent (25%) of the total monthly fees (or pro rata equivalent thereof) that would be payable for that Service Period if no Service Level Failure had occurred. For the avoidance of doubt: In the event a flat fee is agreed upon in the applicable Order, and as a result there is not a monthly fee, the Service Credit for any Service Period will not exceed 25 percent (25%) of the total flat fee divided by the total number of months that constitute the Term. Subject to the foregoing, any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred. This Section 2 sets forth Fastqlik's sole obligation and liability and Customer's sole remedy for any Service Level Failure.

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