QUANTUM KNOWLEDGE STRATEGIC SOLUTIONS, INC.
USER LICENSE AGREEMENT
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR THE “AUTHORIZED USER”) AND QUANTUM KNOWLEDGE STRATEGIC SOLUTIONS, INC., A DELAWARE CORPORATION, (“WE” OR “COMPANY”). BEFORE USING ANY PART OF THE SOFTWARE (AS DEFINED BELOW), YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS SOFTWARE LICENSING AGREEMENT (THE “AGREEMENT”) AS THEY GOVERN YOUR ACCESS TO AND USE OF THE COMPANY SOFTWARE (THE “SOFTWARE”). THE COMPANY IS WILLING TO LICENSE AND ALLOW THE USE OF THIS SOFTWARE ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE SOFTWARE.
By downloading, accessing, or using the Software in order to view our information and materials or submit information of any kind, you represent that you are at least the legal age of majority and will, at all times, provide true, accurate, current, and complete information when submitting information or materials through the Software, including, without limitation, when you provide information via an online registration or submission form. In addition, you agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Software. This Agreement is also expressly made subject to any applicable export laws, orders, restrictions, or regulations.
1.01 Definitions. As used in this Agreement, the following terms have the following meanings and other terms used herein but not defined in this Section 1.01 shall have the meanings so given to them in herein:
(a) “Administrator” shall mean the Authorized User with authority to designate additional Authorized Users and/or Administrators.
(c) “Confidential Information” shall mean the Content (as defined in paragraph 1.01(e)) and any information, technical data, or know-how considered proprietary or confidential by either Party including, but not limited to, either Party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either Party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to either Party’s premises.
(d) “Content” shall mean all information an Authorized User uploads or posts to the Service and any information provided by an Authorized User to Licensor in connection with the Service, including, without limitation, information about the Authorized Users.
(e) “Service” shall mean any software and services provided by Licensor to Authorized User pursuant to this Agreement.
(f) “Authorized User” shall refer to the Party to this Agreement with the Company and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on Authorized User’s behalf.
(g) “Security Emergency” shall mean a violation by Authorized User of this Agreement that (a) could disrupt (i) Licensor’s provision of the Service; (ii) the business of other authorized users to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorized third-party access to the Service.
Limited License & Use of the Service
2.01 Authorized User is granted a revocable, royalty-free, non-exclusive, non-transferable, nonsublicenseable limited license to access and use the Service conditioned on your continued compliance with the terms and conditions of this Agreement.
2.02 Licensor does not review or pre-screen the Content and Licensor claims no intellectual property rights with respect to the Content.
2.03 Authorized User agrees not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from Licensor.
2.04 Authorized User agrees not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Licensor, or any other software or service provided by Licensor.
2.05 Authorized User agrees that they will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.
2.06 Authorized User agrees that they will not knowingly use the Service to upload, post, host, or transmit unsolicited bulk e-mail (“spam”), short message service (“SMS”) messages, viruses, self-replicating computer programs (“worms”), or any code of a destructive or malicious nature.
2.07 Except for the non-exclusive license granted pursuant to this Agreement, Authorized User acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with Licensor.
2.08 Authorized User who configures the Service to share or make available certain Content to the public (“Public Content”), are deemed to acknowledge and agree that everyone will have access to the Public Content. Licensor reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Public Content that violates the terms of this Agreement, including, but not limited to, removal of such Public Content.
2.09 Licensor reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that Licensor shall provide Authorized User with 30 days notice of any modification that materially reduces the functionality of the Service. Continued use of the Service following any modification constitutes Authorized User acceptance of the modification.
2.10 Licensor reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will provide at least two (2) days notice via email prior to any such suspension. Further, Licensor shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to the Authorized User.
2.11 Licensor stores all Content on redundant storage servers. The Authorized User may replicate all Content associated with the subscription to a third-party storage service. The Authorized User may also replicate all Content associated with the subscription on its own storage device.
2.12 Authorized User grants to Licensor a non-exclusive, royalty free right during Authorized User’s use of the Service, to use the Content, including the Confidential Information, for the sole purpose of performing Licensor’s obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for Licensor to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Article IV.
2.13 Authorized User acknowledges and agrees that is shall not provide non-agency personnel or third parties with access to the software in any form, including the source code.
Access to the Service
3.01 Only Authorized Users are permitted to access and use the Service. Authorized Users are required to provide their full legal name, a valid email address, and any other information reasonably requested by the Service or Licensor.
3.02 Each Authorized User will be provided with a unique identifier to access and use the Service (a “Username”) and password associated therewith (a “Password”). Each Username and Password shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
3.03 The initial Administrator shall be an Authorized User with authority to administer the subscription and designate additional Authorized Users and Administrators. Each subscription may designate multiple Authorized Users as Administrators. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorized Users. An Administrator will deactivate an active Username if an Administrator wishes to terminate access to the Service for any Authorized User.
3.04 Administrators are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.
3.05 As between Licensor and the Authorized User, any Content uploaded or posted to the Service remains the property of the Authorized User. Upon cancellation or termination of Service as discussed in Article IX below, Licensor shall only be responsible for the return of Content directly to an Administrator or a designated Authorized User in the event that an Administrator is unable to be reached.
3.06 All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.
3.7 Authorized Users are permitted to access and use the Service using an Application Program Interface (“API”) subject to the following conditions:
(a) any use of the Service using an API, including use of an API through a third-party product that accesses and uses the Service, is governed by this Agreement;
(b) Licensor shall not be liable 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 intangible losses (even if Licensor has been advised of the possibility of such damages), resulting from any use of an API or third-party products that access and use the Service via an API;
(c) Excessive use of the Service using an API may result in temporary or permanent suspension of access to the Service via an API. Licensor, in its sole discretion, will determine excessive use of the Service via an API, and will make a reasonable attempt to warn the Authorized User prior to suspension; and
(d) Licensor reserves the right at any time to modify or discontinue, temporarily or permanently, access and use of the Service via an API, with or without notice.
4.01 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
4.02 Licensor and any third-party vendors and hosting partners it utilizes to provide the Service shall hold Content in strict confidence and shall not use or disclose Content except (a) as required to perform their obligations under this Agreement; (b) in compliance with Article VI of this Agreement, or (c) as otherwise authorized by Authorized User in writing.
SECURITY AND ACCESS
5.01 Licensor is responsible for providing a secure method of authentication and accessing the Service. Licensor will provide mechanisms that: (a) allow for user password management, (b) transmit passwords in a secure format, and (c) protect passwords entered for purposes of gaining access to the Service by utilizing code that follows password management best practices.
5.02 Authorized User will be responsible for protecting the security of Usernames and Passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.
5.03 Authorized User will implement policies and procedures to prevent unauthorized use of Usernames and Passwords, and will promptly notify Licensor upon suspicion that a Username or Password has been lost, stolen, compromised, or misused.
5.04 At all times, Licensor, and any third-party vendors and hosting partners it utilizes to provide the Service, will:
(a) use information security best practices for transmitting and storing the Content, adhering to industry standards;
(b) employ information security best practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management; and
(c) ensure its host facilities maintain industry standards for security and privacy.
5.05 Licensor shall report to Authorized User, with all relevant details, any event that Licensor reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). Licensor shall make such report within 48 hours after learning of the Security Breach.
5.06 In the event of a Security Breach, Licensor shall (a) cooperate with Authorized User to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Authorized User in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Authorized User in any litigation or investigation against third parties that Authorized User undertake to protect the security and integrity of Content; and (d) mitigate any harmful effect of the Security Breach.
6.01 Licensor maintains that its primary duty is to protect the Content to the extent the law allows. Licensor reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
6.02 If Licensor is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then Licensor will provide Authorized User with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Authorized User may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Licensor may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
MANAGED BACKUP AND ARCHIVING
7.01 Licensor’s managed backup services must be designed to facilitate restoration of Content to the server or device from which the Content originated in the event the primary data is lost or corrupted. Licensor shall ensure recovery of lost or corrupted Content at no cost to Authorized User. Prior to any cancellation or termination of Service for any reason, Authorized User shall have at least 90 days to retrieve any and all Content.
PAYMENT, REFUNDS, AND SUBSCRIPTION CHANGES
8.01 Authorized Users with paid subscriptions will provide Licensor with a valid credit card for payment of the applicable subscription fees. All subscription fees are exclusive of all federal, state, provincial, municipal or other taxes, which Authorized Users agree to pay, based on where the Authorized User is primarily domiciled. In addition to any fees, the Authorized User may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.
8.02 Authorized Users with monthly paying subscriptions will be charged upon the expiration of any applicable free trial period. Subscriptions canceled prior to the expiration of any trial period, will not be charged. Monthly Authorized Users will thereafter be charged in advance each 30 days. Annual Authorized Users will thereafter be charged annually on the anniversary date of the initial subscription charge. All charges are non-refundable.
8.03 No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Authorized User.
8.04 There are no charges for canceling a subscription, and paying subscriptions cancelled prior to the end of their current billing cycle will not be charged again in the following cycle.
8.05 The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades. Subscription changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
8.06 All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Administrator, or in the form of an announcement on the Service.
8.07 Authorized User is responsible for paying all taxes associated with the subscription to the Service. If Licensor has the legal obligation to pay or collect taxes for which Authorized User is responsible under this section, the appropriate amount shall be invoiced to and paid by Authorized User, unless Authorized User provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority.
8.08 Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Authorized User is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Licensor receives an amount equal to the sum it would have received had no such deduction or withholding been made.
TERM AND TERMINATION
9.01 This Agreement and your right to use the Software will take effect at the moment you click “I ACCEPT” or you install, access, or use the Software and is effective until terminated as set forth below. This Agreement will terminate automatically if you click “I REJECT”. In addition, Company reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this Agreement, to deny your access to the Software or to any portion thereof in order to protect its name and goodwill, its business, and/or other Authorized Users, and this Agreement will also terminate automatically if you fail to comply with this Agreement, subject to the survival rights of certain provisions identified below. Termination will be effective without notice. You may also terminate this Agreement at any time by ceasing to use the Software, but all applicable provisions of this Agreement will survive termination. Upon termination, you must destroy all copies of any aspect of the Software in your possession. In addition to the miscellaneous section below, the provisions concerning Confidentiality, indemnity, disclaimers of warranty, limitation of liability, and governing law will survive the termination of this Agreement for any reason.
LIMITATION OF LIABILITY
10.01 Except in the case of a violation by Licensor of its obligations under Article IV above (“Confidentiality”), Article V above (“Security and Access”), and Article VII above (“Managed Backup and Archiving”), and except as provided in Section 12.02 below (“Indemnification”), Licensor shall not be liable for and Authorized User waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Service.
10.02 AUTHORIZED USER AGREES THAT THE LIABILITY OF LICENSOR ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT AUTHORIZED USER HAS PAID FOR THE SERVICE PURSUANT TO THE AGREEMENT WITHIN THE 12 MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE. AUTHORIZED USER FURTHER AGREES THAT LICENSOR IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ARE NOT APPLICABLE TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 12.02.
10.03 Authorized User will solely be responsible for any damage and/or loss of Content contained in Authorized User’s technology which occurs as a result of Authorized User’s electronic equipment and/or Authorized User’s computer system.
DISCLAIMER OF WARRANTIES
11.01 LICENSOR HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH RESPECT TO ANY SERVICES PROVIDED BY LICENSOR. NOTHING IN THIS SECTION 11.01 SHALL MODIFY LICENSOR’S OBLIGATION TO INDEMNIFY AUTHORIZED USER AS REQUIRED BY PARAGRAPH 12.02(A) OF THIS AGREEMENT (“INDEMNIFICATION”).
11.02 Licensor makes no warranty that the Service when provided to Authorized User in digital or electronic format will be compatible with Authorized User computer and/or other equipment, or that the Service will be secure or error free. Nor does Licensor make any warranty as to any results that may be obtained from the use of the Service. Nothing in this Section 11.02 shall modify Licensor’s obligations under Article IV above (“Confidentiality”) or Article V above (“Security and Access”) or Licensor’s obligation to indemnify Authorized User as required by paragraph 12.02(b) of this Agreement (“Indemnification”).
11.03 Licensor hereby disclaims all warranties of any kind related to Authorized User’s hardware or software beyond the warranties provided by the manufacturer of Authorized User’s hardware or software.
12.01 Authorized User shall indemnify and hold harmless Licensor from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to:
(a) an Authorized User’s breach of any obligation stated in this Agreement, or
(b) an Authorized User’s negligent acts or omissions.
Licensor will provide prompt notice to Authorized User of any indemnifiable event or loss. Authorized User will undertake, at Authorized User’s own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to Licensor. Licensor reserves the right to participate in the defense of the claim, suit, or proceeding, at Licensor’ expense, with counsel of Licensor’ choosing.
12.02 Licensor shall defend, indemnify and hold Authorized User harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Authorized User by a third party:
(a) alleging that the Service, or use of the Service as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of this Agreement, or a trademark of a third party or involves the misappropriation of any trade secret of a third party; so long as Authorized User:
(i) promptly gives written notice of the Claim to Licensor (provided, however, that the failure to so notify shall not relieve Licensor of its indemnification obligations unless Licensor can show that it was materially prejudiced by such delay and then only to the extent of such prejudice);
(ii) gives Licensor sole control of the defense and settlement of the Claim (provided that Licensor may not settle any Claim unless it unconditionally releases Authorized User of all liability); and
(iii) provides to Licensor, at Licensor’s cost, all reasonable assistance; or
(b) arising out of or related to a violation by Licensor of its obligations under Article IV above (“Confidentiality”) or Article V above (“Security and Access”).
Licensor shall not be required to indemnify Authorized User in the event of: (x) modification of the Service by Authorized User in conflict with Authorized User’s obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (y) use of the Service in combination with any other product or service not provided by Licensor to the extent that the infringement or misappropriation would not have occurred but for such use; or (z) use of the Service in a manner not otherwise contemplated by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use.
13.01 Technical Support. Technical support and training are available to Authorized Users with active subscriptions, and is available by telephone, email or electronic support ticket, as defined at http://www.qks2.com/.
13.02 Third-Party Vendors. Authorized User acknowledges and agrees that Licensor may use third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
13.03 Third-Party Products & Services. Licensor may provide the ability to integrate the Service with third-party products and services that Authorized User may use at Authorized User’s option and risk. Access to and use of any third-party products and services are subject to the separate terms and conditions required by the providers of the third-party products and services. Authorized User agrees that Licensor has no liability arising from Authorized User’s use of any integrations or arising from the third-party products and services. Licensor can modify or cancel the integrations at any time without notice.
13.04 Interception of Information. Authorized User acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. Authorized User agrees to accept that risk and will not hold Licensor liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only Licensor, with strict business reasons, may access and transfer the Content and only to provide Authorized User with the Service. Licensor will make reasonable efforts to provide notice to Authorized User prior to such access and transfer. Licensor’ actions will comply with its obligations under Articles IV and V of this Agreement.
13.05 No Implied Waiver. The failure of either Party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
13.06 Entire Agreement. This Agreement constitutes the entire agreement between Authorized Users and Licensor and governs Authorized Users use of the Service, superseding any prior agreements between Authorized Users and Licensor (including, but not limited to, any prior versions of this agreement).
13.07 Amendments. Licensor reserves the right to amend this Agreement. In the event of material changes to the Agreement, Licensor will notify Authorized Users, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by the Authorized User after reasonable notice will be considered acceptance of any new terms.
13.08 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
13.09 Governing Law and Venue. This Agreement and the relationship between Licensor and Authorized User shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in Texas and shall be considered to have been made and accepted in Texas, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the courts of Texas.
13.10 Severability. The invalidity of any provision of this Agreement shall not affect the enforceability of the remaining provisions of this Agreement or any part thereof. If any provision or provisions hereof shall be declared invalid, this Agreement shall be construed as if such invalid provision or provisions had not been included herein.
13.11 Third Party Rights. Other than as explicitly stated in this Agreement, this Agreement does not provide any third party with any remedy, claim, liability, reimbursement, cause of action or other right or privilege.
13.12 Headings and Certain Terms. The headings contained in the Agreement are for convenience only and are not intended to vary or supplement the terms of the section which follow the heading. Headings are not to be given any weight if an issue arises regarding the interpretation of the Agreement. Within the Agreement, words of any gender shall be held and construed to include any other gender and words in the singular number shall be held and construed to include the plural, and vice versa, unless the context otherwise requires.