QSP CLOUD COMPUTING CUSTOMER AGREEMENT
BY CLICKING THE “ACCEPT” BUTTON FOR THIS AGREEMENT OR ACCEPTING ANY MODIFICATION TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 2 BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A QSP OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE “DECLINE” BUTTON AND YOU MAY NOT USE THE SERVICES.
1. THE SERVICES
The services covered by this Agreement include both free services that QSP and its affiliates (referred to together herein as “we” or “us”) make available for no fee (the “Free Services”), and services that we make available for a fee (the “Paid Services”). The Free Services and the Paid Services are referred to collectively in this Agreement as the “Services.” Each Free Service and Paid Service is referred to individually as a “Service.”
1.1. Free Services. The Free Services include those that we make available to you free of charge on the QSP-branded Web sites accessible from www.QUICKSOLVEPLUS.com (collectively, the “QSP Web site”), except those web services for which we specifically provide a separate customer agreement.
1.2. Paid Services. The Paid Services include all web services and any related support services that we make available to you for a fee as described on the QSP Web site, except those services for which we specifically provide a separate customer agreement. Our Paid Services include, but are not limited to:
- Client database
- Worker database
- Scheduling services
- Payroll processing services
- Training and help desk/software support services
If you use QSP Paid Services, you may incur fees for transactions that you submit through the Payment Service provided, which is described in Section 5 below. We may, in our sole discretion, (a) begin charging fees for a Free Service, in which case such Service will thereafter be deemed a Paid Service, or (b) cease charging fees for a Paid Service, in which case such Service will thereafter be deemed a Free Service.
2. MODIFICATIONS TO THIS AGREEMENT
You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, “Additional Policies”) at any time by posting a revised version of the Agreement or such Additional Policy on the QSP Web site. The revised terms shall be effective as follows:
- if the revised terms are otherwise for any then-existing Paid Services, then the revised terms shall be effective upon the earlier to occur of (a) fifteen (15) days after posting and (b) if we provide a mechanism for your immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button, your acceptance.
By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement or any revised Additional Policies. It is your responsibility to check the QSP Web site regularly for changes to this Agreement or the Additional Policies, as applicable.
3. TERM, TERMINATION, AND SUSPENSION
3.1. Term. The term of this Agreement (“Term”) will commence, and you may begin using the Services, once you agree to the terms and conditions of this Agreement by clicking the “Place Order” button during checkout and complete the registration process for your account. The Agreement will remain in effect until terminated by you or us in accordance with this Section 3.
3.2. Termination by You for Convenience. You may terminate this Agreement for any reason or no reason at all, at your convenience, by (a) providing us written notice of termination in accordance with Section 15 and (b) closing your account for any Service for which we provide an account closing mechanism. Your service will terminate immediately upon our receipt of said termination request.
3.3. Termination or Suspension by Us Other Than for Cause.
3.3.1. Free Services. We may suspend your right and license to use any or all Free Services and any associated products (as defined in Section 6.1 below), or, if you are only using Free Services, terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time, immediately upon notice to you in accordance with the notice provisions set forth in Section 15 below.
3.3.2. Paid Services. We may suspend your right and license to use any or all Paid Services, or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time by providing you sixty (60) days’ advance notice in accordance with the notice provisions set forth in Section 15 below.
3.4. Termination or Suspension by Us for Cause. We may suspend your right and license to use any individual Service or any set of Services, or terminate this Agreement in its entirety (and, accordingly, your right to use all Services), for cause effective as set forth below:
3.4.1. Immediately upon our notice to you in accordance with the notice provisions set forth in Section 15 below if: (a) you attempt a denial of service attack on any of the Services; (b) you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services poses a security or service risk to us, to any user of services offered by us, to any third-party sellers on any of our Web sites, or to any of our or their respective customers or may subject us or any third party to liability, damages or danger; (c) you otherwise use the Services in a way that disrupts or threatens the Services; (d) you are in default of your payment obligations hereunder and there is an unusual spike or increase in your use of the Services; (e) we determine, in our sole discretion, there is evidence of fraud with respect to your account; (f) you use any of the QSP Content (as defined in Section 6.1) or Marks (as defined in Section 6.2) other than as expressly permitted herein; (g) we receive notice or we otherwise determine, in our sole discretion, that you may be using QSP Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (h) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (i) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
3.4.2. Fifteen (15) days following our provision of notice to you in accordance with the notice provisions set forth in Section 15 below if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism, and you fail to cure such payment obligation default or correct such payment mechanism problem within such 15-day period.
3.4.3. Five (5) days following our provision of notice to you in accordance with the notice provisions set forth in Section 15 below if you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such five-day period.
3.5. Effect of Suspension or Termination.
3.5.1. Suspension. Upon our suspension of your use of any Services, in whole or in part, for any reason, (a) fees will continue to accrue for any Services that are still in use by you, notwithstanding the suspension; (b) you remain liable for all fees, charges, and any other obligations you have incurred through the date of suspension with respect to the Services; and (c) all of your rights with respect to the applicable Services shall be terminated during the period of the suspension.
3.5.2. Termination. Upon termination of this Agreement for any reason: (a) you remain liable for all fees, charges, and any other obligations you have incurred through the date of termination with respect to the Services; (b) all of your rights under this Agreement shall immediately terminate; and (c) you shall immediately return, or if instructed by us, destroy all QSP Confidential Information (as defined in Section 9 below) then in your possession.
3.6. Survival. In the event this Agreement is terminated for any reason, Sections 3.5, 3.6, 3.7, 3.8, 4.2, 6, 8 (with respect to payments that are accrued but unpaid at the time of termination), and 9 through 16 will survive any such termination.
3.7. Data Preservation in the Event of Suspension or Termination.
3.7.1. In the Event of Suspension Other Than for Cause. In the event of a suspension by us of your access to any Service for any reason other than a for cause suspension under Section 3.4.1, during the period of suspension, (a) we will not take any action to intentionally erase any of your data stored on the Services and (b) applicable Service data storage charges will continue to accrue.
3.7.2. In the Event of Termination Other Than for Cause. In the event of any termination by us of any Service or any set of Services, or termination of this Agreement in its entirety, other than a for cause termination under Section 3.4.1, (i) we will not take any action to intentionally erase any of your data stored on the Services for a period of thirty (30) days after the effective date of termination; and (ii) your post-termination retrieval of data stored on the Services will be conditioned on your payment of Service data storage charges for the period following termination, payment in full of any other amounts due us, and your compliance with terms and conditions we may establish with respect to such data retrieval.
3.7.3. In the Event of Other Suspension or Termination. Except as provided in Sections 3.7.1 and 3.7.2 above, we shall have no obligation to continue to store your data during any period of suspension or termination or to permit you to retrieve the same.
3.8. Post-Termination Assistance. Following the suspension or termination of your right to use the Services by us or by you for any reason other than a for cause termination (i.e., a termination under Section 3.2 or under Section 3.3), you shall be entitled to take advantage of any post-termination assistance we may generally make available with respect to the Services, such as data retrieval arrangements we may elect to make available. We may also endeavor to provide you unique post-suspension or post-termination assistance, but we shall be under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to you, shall be conditioned upon your acceptance of and compliance with any fees and terms we specify for such assistance.
4. AUTHORIZATION AND LICENSE TO USE THE SERVICES
Subject to your acceptance of and compliance with this Agreement and with the payment requirements for the Services that are set forth on the applicable Service detail page on the QSP Web site (as such payment terms may be updated from time to time), we hereby grant you a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.
4.1. Permitted Uses Generally.
4.1.1. You may write or develop software, Web sites, or other online services or technology that you store in, or that interface with, the Services (collectively “Applications”). Applications include machine images containing software applications, libraries, data, and associated configuration settings. You acknowledge that we may change, deprecate, or republish application programming interfaces (APIs) (as defined in Section 6.1 below) for any Service or feature of a Service from time to time, and that it is your responsibility to ensure that calls you make to any Service are compatible with then-current APIs for the Service. You further acknowledge that we may change or remove features or functionality of the Services at any time.
4.1.2. You may enable access and use of Your Content by your end users in accordance with the terms of this Agreement. “Your Content” means any Application, data, or other content that you may (a) provide to us pursuant to this Agreement, (b) make available to any end users in conjunction with the Services, or (c) develop or use in connection with the Services. You are responsible for all terms and conditions applicable to Your Content.
4.1.3. You may make network calls or requests to the Services at any time that the Services are available, provided that, unless otherwise set forth in the Service Terms applicable to any Service, you (or if you build and release an Application, each installed copy of your Application) may not exceed the maximum file size or maximum calls per second limit (if any) set forth in the Service Terms for any particular Service (or, in the event the Service Terms for a Service do not indicate a maximum file size, greater than 40K).
4.2. Restricted Uses Generally.
4.2.1. You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services.
4.2.2. You may not compile or use the QSP services or any other information obtained through the Services for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing, or other activities, including, without limitation, any activities that violate QSP’s anti-spamming policies and regulations.
4.2.3. You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right designation appearing on or contained within the Services.
4.2.4. Subject to the terms and conditions of this Agreement, you may generally publicize your use of the Services; however, you may not issue any press release with respect to the Services or this Agreement without our prior written consent.
4.3. Accounts and Keys. Unless otherwise stated in the applicable Service Terms, you may only create one customer account per Company Name and primary email address QSP accounts are associated with one or more public key/private key pairs, which are used to access the service. When you complete the account creation process, you will be issued unique account identifiers (“Account Identifiers”), and may add a public key to your account. Account Identifiers (a) identify your account and (b) allow you to make requests to QSP. The Account Identifier is immutable and will always uniquely identify your QSP account. Public key/private key pairs are unique to your account and are subject to change. Private keys are for your personal use only, and you may not sell, transfer, sublicense or otherwise disclose your private key to any other party. You may use your public key in the open in requests to QSP; your public key is therefore not secret. However, you are responsible for maintaining the secrecy and security of your private key. You are fully responsible for all activities that occur under your Account Identifiers, regardless of whether such activities are undertaken by you or a third party. Therefore, you should contact us immediately if you believe a third party may be using your private key, or if your private key is otherwise lost or stolen. You are responsible for maintaining up-to-date and accurate information (including contact information) for your QSP account. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss, or failure to store any of Your Content or other data which you submit or use in connection with your account or the Services.
5. ACCEPTABLE USE POLICY AND SERVICE TERMS
You may only use the Services in accordance with the AUP and the applicable Service Terms.
5.1 Payment, Renewal and Invoicing Policies. Ongoing service charges are based upon the number of active (schedulable) workers in your database. On the last business day of the last month of your chosen payment plan (monthly, quarterly, semi-annually, annually) QSP will generate an invoice for the next payment cycle. Unless otherwise notified in writing or email by you, the service agreement will renew for the same period chosen at the time of contract signing. Payment is due upon receipt of invoice or on the first day of the renewed period, even without receipt of an invoice. Payment may be made monthly, annually or quarterly by mail or monthly by electronic ACH deposit according to the terms outlined in Appendix A below. Failure to pay invoice in a timely fashion will constitute cause potentially leading to Suspension and/or Termination of Services as outlined in section 3 above. Any payments by mail will be considered late if not received 20 days from invoice date. Any failed ACH payments will be considered late immediately.
5.2 Pricing. See Appendix A.
6. LICENSE TO USE THE QSP WORKS
6.1. QSP Works. We may make available to you, for your installation, copying, and/or use in connection with the Services, from time to time, a variety of software, data, and other content and printed and electronic documentation (all such materials except those specifically made available by us under separate license terms, the “QSP Works”). Subject to your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for your right to use the subject Service, we hereby grant to you, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term, under our intellectual property or proprietary rights in the QSP Works, only to install, copy, and use the QSP Works solely in connection with and as necessary for your use of such Services and solely to the extent in compliance with all the terms and conditions of this Agreement. The QSP Works may include, without limitation:
- Proprietary application programming interfaces (“APIs”);
- Developer tools for use in connection with the APIs;
- Articles and documentation for use in connection with the use and implementation of the APIs (collectively, “Documentation”);
- Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related APIs and other technology;
- Textual materials made available as part of the Service (“Text Materials”); and
- Other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video (with the Text Materials, collectively, “QSP Content”).
Sample source code which we may make available from time to time for use in connection with the Services (“Sample Source Code”) and libraries which we may make available from time to time for use in connection with the Services (“Libraries”) will be made available to you under separate license that accompanies each Sample Source Code or Library and the term “QSP Works,” as used herein, specifically excludes any Sample Source Code or Libraries made available to you under separate license.
Except as may be expressly authorized under this Agreement:
- You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software included in or accessed via the QSP Works.
- You may not, and may not attempt to, reverse-engineer, disassemble, or decompile the QSP Works or the Services or apply any other process or procedure to derive the source code of any software included in or accessed via the QSP Works.
- You may edit Text Materials only by deleting text from and reducing the length of the Text Materials and only if, in doing so, you do not materially alter the meaning of the Text Materials or cause the Text Materials to become factually incorrect or misleading. You may not add additional information to the Text Materials (e.g., you may not insert words into a customer review or supplement a wish list with new items). You hereby irrevocably assign to us any and all intellectual property or proprietary rights in such edited Text Material.
6.2. Use of Marks. Your use of any trademarks, service marks, service or trade names, logos, and other designations of QSP and its affiliates or licensors (“Marks”) shall strictly comply with the Trademark Guidelines and the following provisions. You may use the Marks in conjunction with the display of the QSP Content and for the purpose of indicating that your Application was created using the Services. You must immediately discontinue use of any Mark as specified by us at any time in writing. We may modify any Marks provided to you at any time, and upon notice, you will use only the modified Marks and not the old Marks. Other than as specified in this Agreement, you may not use any trademark, service mark, trade name, or other business identifier of QSP or its affiliates unless you obtain QSP’s or its affiliates’ prior written consent. In addition, you agree not to misrepresent or embellish the relationship between us and you, for example, by implying that we support, sponsor, endorse, or contribute money to you or your business endeavors.
6.3. Nonexclusive Rights. The rights granted by QSP in this Agreement with respect to the QSP Works, the Marks and the Services are nonexclusive, and QSP reserves the right to: (a) itself act as a developer of products or services related to any of the products that you may develop in connection with your use of the Services; and (b) appoint third parties as developers or systems integrators who may offer products or services which compete with QSP or your Application.
7. DOWNTIME AND SERVICE SUSPENSIONS; SECURITY
7.1. Downtime and Service Suspensions. In addition to our rights to terminate or suspend Services to you as described in Section 3 above, you acknowledge that: (a) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures, or other interruptions; and (b) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (i) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (ii) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (iii) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Without limitation to Section 11.5, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you e-mail notice of any Service Suspension in accordance with the notice provisions set forth in Section 15 below and to post updates on the QSP Web sites regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
7.2. Security. We strive to keep Your Content secure but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Section 4.3 above and Section 11.5 below, you acknowledge that you bear sole responsibility for adequate security, protection, and backup of Your Content and Applications. We strongly encourage you, where available and appropriate, to (a) use encryption technology to protect Your Content from unauthorized access, (b) routinely archive Your Content, and (c) keep your Applications or any software that you use or run with our Services current with the latest security patches or updates. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction, or loss of any of Your Content or Applications.
8.1. Service Fees. In consideration of your use of any of the Paid Services, you agree to pay applicable fees for Paid Services in the amounts set forth on the respective Service detail pages on the QSP Web site (including any minimum subscription fees). You are responsible for any fees assessed by QSP Payments for transactions that you submit to the Payment Service. Fees for any new Service or new Service feature will be effective upon posting by us on the QSP Web site for the applicable Service. We may increase or add new fees for any existing Service or Service feature, or implement a fee for any previously Free Service or Free Service feature, by giving you 30 days’ advance notice. Such notice will be posted on the QSP Web site on the Service detail page for the affected Service. You agree that you are responsible for checking the QSP Web site each month to confirm whether there are any new fees and their effective date(s). All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you, including without limitation your VAT identification number.
8.2. Payment. We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
8.3. Special Pricing Programs. From time to time, we may offer free or discounted pricing for compute capacity, data transfer, data storage, and other usage of certain Services (each a “Special Pricing Program”). After a Special Pricing Program ends, normal charges will apply. You must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage) we impose in connection with the Special Pricing Program as described on the Service-specific detail pages on the QSP Web site. You may not sign up for multiple QSP accounts in order to receive additional benefits under a Special Pricing Program. We may immediately terminate any account that we determine, in our sole discretion, is established or used to avoid the terms, restrictions, or limitations applicable to a Special Pricing Program. Any data stored as part of a Special Pricing Program must be actively used.
8.4 Refunds upon Cancellation of Service. Per section 3 above QSP allows you to opt out of service at any time. However, if opting out early of a Semi-Annual or Annual contract, QSP will invoice for any free months given per Special Pricing Programs. QSP will not refund pre-payments made under special pricing discounts.
9.1. Use and Disclosure. You shall not disclose QSP Confidential Information during the Term or at any time during the three (3)-year period following the end of the Term. As used in this Agreement, “QSP Confidential Information” means all nonpublic information disclosed by us, our business partners, or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. QSP Confidential Information includes, without limitation, (a) nonpublic information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances, and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (b) third-party information that we are obligated to keep confidential, and (c) the nature, content, and existence of any discussions or negotiations between you and us. Confidential Information does not include any information described in Section 9.2 or any information that you are required to disclose by law.
9.2. Excluded Information. Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us under Section 9.1 above, with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data, or content provided or made available by you hereunder that: (a) is or becomes publicly available without breach of this Agreement; (b) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (c) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (d) can be shown by documentation to have been independently developed by the receiving party.
9.3. Conflict with Separate Nondisclosure Agreement. If you and we are parties to a separate nondisclosure agreement (“Stand-Alone NDA”) and there is a conflict between the terms of the Stand-Alone NDA and the terms of this Section 9, the terms of the Stand-Alone NDA shall control.
10. INTELLECTUAL PROPERTY
10.1. Our Services and the QSP Works. Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title, and interest (including all intellectual property and proprietary rights) in and to: (a) the Services; (b) the QSP Works; (c) the Marks; and (d) any other technology and software that we provide or use to provide the Services and the QSP Works. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the QSP Works, the Marks, or other technology and software (including third-party technology and software), except for the limited use and access rights described in this Agreement.
10.2. Your Applications, Data, and Content. Other than the rights and interests expressly set forth in this Agreement, and excluding QSP Works and works derived from QSP Works, you reserve all right, title, and interest (including all intellectual property and proprietary rights) in and to Your Content. We will not disclose Your Content, except: (a) if you expressly authorize us to do in connection with your use of the Services; or (b) as necessary to provide the Services to you, or to comply with the Agreement or the request of a governmental or regulatory body, subpoenas, or court orders.
10.3. Feedback. In the event you elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services, the QSP Works, or the Marks (collectively, “Feedback”), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title, and interest in and to the Feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback.
10.4. Non-Assertion. During and after the term of the Agreement, with respect to any of the Services that you elect to use, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third-party sellers on Web sites operated by or on behalf of us), licensors, sublicensees, or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
11. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS; LIMITATIONS OF LIABILITY
11.1. Use of the Services. You represent and warrant that you will not use the Services, QSP Works, and/or your Application and Your Content: (a) in a manner that infringes, violates, or misappropriates any rights of us or any third party; (b) to engage in spamming or other impermissible advertising, marketing, or other activities, including, without limitation, any activities that violate anti-spamming regulations, including, without limitation, the CAN SPAM Act of 2003; (c) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms, or other data that are subject to export; and/or (d) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
11.2. Applications and Content. You represent and warrant: (a) that you are solely responsible for the development, operation, and maintenance of Your Content, including without limitation, the accuracy, security, appropriateness and completeness of Your Content and all product-related materials and descriptions; (b) that you have the necessary rights and licenses, consents, permissions, waivers, and releases to use and display Your Content; (c) that Your Content (i) does not violate, misappropriate, or infringe, any rights of us or any third party, (ii) does not constitute defamation, invasion of privacy, or publicity, or otherwise violate any rights of any third party, or (iii) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, use in a manner that might be libelous or defamatory or otherwise malicious, illegal, or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (d) that Your Content does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code (collectively “Harmful Components”); and (e) to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of QSP.
11.3. Public Software and Feedback. You represent and warrant that you will not use, and will not authorize any third party to use, any Public Software in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any QSP Works or Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. With respect to any Feedback, you represent and warrant that such Feedback, in whole or in part, contributed by or through you, (a) contains no third-party software or any software that may be considered Public Software and (b) does not violate, misappropriate, or infringe any intellectual property rights of any third party. “Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation, or other material that is distributed as free software, open source software, or similar licensing or distribution models, including, but not limited to software, documentation, or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (b) The Artistic License (e.g., PERL), (c) the Mozilla Public License, (d) the Netscape Public License, (e) the Sun Community Source License (SCSL), (f) the Sun Industry Standards License (SISL), (g) the BSD License, and (h) the Apache License.
11.4. Authorization and Account Information. You represent and warrant that: (a) the information you provide in connection with your registration for the Services is accurate and complete; (b) if you are registering for the Services as an individual, you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (c) if you are registering for the Services as an entity or organization, (i) you are duly authorized to do business in the country or countries where you operate, (ii) the individual clicking “Accept” on this Agreement and completing the registration for the Services meets the requirements of subsection (b) above and is an authorized representative of your entity, and (iii) your employees, officers, representatives, and other agents accessing the Services are duly authorized to access the Services and to legally bind you to this Agreement and all transactions conducted under your account.
11.5. Disclaimers. QSP WORKS, THE MARKS, THE SERVICES, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS, AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS.” WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY. OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11.6. Your Applications are Your Responsibility. In addition to the foregoing, we specifically disclaim all liability, and you shall be solely responsible for the development, operation, and maintenance of your Application (including any Bundled Application) and for all materials that appear on or within your Application and you agree that you shall, without limitation, be solely responsible for:
11.6.1. the technical operation of your Application and all related equipment;
11.6.2. the accuracy and appropriateness of any materials posted on or within your Application (including, among other things, any product-related materials);
11.6.3. ensuring that any materials posted on your site or within your Application are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal, or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
11.6.5. any of your users’ or customers’ claims relating to your Application or any Services utilized in connection with your Application; and
11.6.6. your election to utilize sample code and libraries that may be made available on the QSP Web site, many of which may be provided by third parties and many of which we have not tested or screened in any way.
11.7. Links. The QSP Web site and/or the Services may contain links to Web sites that are not under our control (“Third-Party Sites”). We are not responsible for the contents or functionality of any Third-Party Sites or any Web site that can be accessed via links on any Third-Party Site. We provide these links to you as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third-Party Site.
11.8. Limitations of Liability. NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
12.1. General. You agree to indemnify, defend, and hold us, our affiliates, and licensors, each of our and their business partners (including third-party sellers on Web sites operated by or on behalf of us) and each of our and their respective employees, officers, directors, and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs, and expenses (including reasonable attorney’s fees), arising out of or in connection with any claim arising out of (a) your use of the Services and/or QSP Works in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, Additional Policies, and/or applicable law, (b) Your Content, or the combination of either with other applications, content, or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights, and/or the use, development, design, manufacture, production, advertising, promotion, and/or marketing of Your Content, (c) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (d) you or your employees’ or personnel’s negligence or willful misconduct.
12.2. Notification. We agree to promptly notify you of any claim subject to indemnification, provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
13. U.S. GOVERNMENT LICENSE RIGHTS; IMPORT AND EXPORT COMPLIANCE
13.1. U.S. Government License Rights. All Services provided to the U.S. Government are provided under the commercial license rights and restrictions generally applicable under this Agreement.
13.2. Import and Export Compliance and Restrictions. You shall, in connection with your use of the Services or the QSP Works, comply with all applicable import, export, and re-export control and regulations of any country, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, Council Regulation (EC) No 428/2009 on the control of exports of dual-use items and technology, and country-specific economic sanctions programs or embargoes adopted against countries or individuals under any applicable national or international legislation, including any measures implemented by the U.S. Office of Foreign Assets Control.
14.1. Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of QSP’s or any third party’s intellectual property and/or proprietary rights. Any dispute relating in any way to your visit to the QSP Web site or to products or services sold or distributed by QSP or its affiliates in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 shall be adjudicated in any state or federal court in Alameda County, California, and you consent to exclusive jurisdiction and venue in such courts. You further acknowledge that our rights in the QSP Works are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
14.2. Governing Law. By using the Services, you agree that the laws of the State of California, without regard to principles of conflicts of law, will govern this Agreement and any dispute of any sort that might arise between you and us. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
15.1. To You. Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e.g., notices of updated fees, etc.) will be posted on the QSP Web site. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the e-mail address provided to us in your registration for the Services or in any updated e-mail address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your e-mail address current and you will be deemed to have received any e-mail sent to any such e-mail address, upon our sending of the e-mail, whether or not you actually receive the e-mail.
15.2. To Us. For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact QSP as follows:
475 Knollcrest Dr
Redding, CA 960002
15.3. Language. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
16. MISCELLANEOUS PROVISIONS
16.1. Third-Party Activities. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
16.2. Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
16.3. Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
16.4. Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns.
16.5. Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the QSP Web site and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.
16.6. No Endorsement. You understand and acknowledge that we are not certifying or endorsing, and have no obligation to certify or endorse, any of your Applications or Your Content.
16.7. Relationship. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership, or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates).