3. Modification of the Terms. From time to time, Qotient may change, modify, add, or remove portions of the Terms, and reserves the right to do so in its sole discretion. If we modify the Terms, we will make them available through the Service, and indicate the date of the latest revision. We encourage users to review the Terms periodically for changes. In the event that the modifications materially alter your rights or obligations hereunder we will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access the Service for the first time after such material changes are made. All amended Terms automatically take effect 30 days after they made available through the Service, except that (i) disputes between you and Qotient will be governed by the version of the Terms that was in effect on the date the dispute arose and (ii) if you do not agree with any changes to the Terms, you may terminate these Terms by ceasing use of the Service. Your continued use of the Service after revised Terms have become effective indicates that you have read, understood and agreed to the current version of the Terms.
4. Service Access and Use.
(a) Grant and Restrictions. Qotient grants you permission to use the Service as set forth in these Terms, provided that and for so long as (i) you use the Service solely for the business purposes of the Subscribing Organization or the business purposes of such third parties as are specifically identified on the Purchase Order, to the extent authorized on the Purchase Order, and you warrant and represent that you are acquiring the right to access and use the Services for the purpose of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service or these Terms; (ii) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise exploit any portion of the Service in any medium without Qotient’s prior written authorization; (iii) you do not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you otherwise fully comply with these Terms.
(c) Publicity Consent. Qotient reserves the right to use your name as a reference for marketing or promotional purposes on the Qotient Site and in other communication with existing or potential Qotient customers. If you’d prefer not to be listed, please send an email to support@Qotient.com and we’ll make sure you’re not listed or used as a reference.
(d) Third Party Fees. You understand and acknowledge that third party fees may apply to your use of the Apps, including without limitation fees charged by your mobile service provider for network access, data transmission, or other similar fees. You are solely responsible for all such fees. Please note that transmitting certain data to the Service or Apps may be data intensive, and you should confirm your data usage plan details with your network operator.
(f) Location-Based Services. Some of the features of the Service may enable Qotient to access your location in order to provide the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you must enable certain features of your mobile phone, such as GPS, Wi-Fi, and Bluetooth, which enable Qotient to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. To the extent your location is collected through Wi-Fi or Bluetooth sensors, such sensors, and the associated data services, may be provided by a third party, and you agree and acknowledge that such third party may access such information for the purpose of providing such data services to Qotient. You will be given the option to automatically enable the provision of some Location-based Services through the Apps, and to enable or disable such Location-based Services at any time through the App’s Settings menu. If you choose to disable any Location-based Services on your device and/or opt out of any Location-based Services through the App’s Settings menu, you will not be able to utilize certain features of the Apps. By enabling Location-based Services on your device, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the Apps, (ii) Qotient may provide Location-based Services related to and based on your then-current location, and (iii) Qotient may use any such information collected in connection with the provision of Location-based Services in connection with its provision of the Apps. PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND QOTIENT DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.
(g) NOTICE REGARDING APPLE. If you are using the Apps on an iOS-based device, you agree to and acknowledge that this Agreement is between you and Qotient only, not with Apple, Inc. (“Apple”), and Apple is not responsible for the Apps and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the Apps to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apps. Apple is not responsible for addressing any claims by you or any third party relating to the Apps or your possession and/or use of the Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the Apps fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Apps and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Apps. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
5. Ownership; Proprietary Rights. The Service including without limitation any methods of operation, moral rights, documentation, software, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service that are provided by Qotient (“Qotient Materials”) are owned and/or licensed by Qotient. Qotient Materials do not include Contributed Content (as defined below). Except as expressly authorized by Qotient, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Service or the Qotient Materials. Qotient reserves all rights not expressly granted in these Terms. You shall not acquire any right, title, or interest to the Qotient Materials, except for the limited rights set forth in these Terms.
6. User Content.
(a) General. The Service may now or in the future permit you and Users to post, link upload or transmit media, text, audio and video recordings, photos, graphics, commentary or other information or content (“User Content”), and to host and/or share such User Content.
(b) Grant of Rights. By submitting User Content to or via the Service, you hereby grant Qotient and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, transferable license, with the right to grant and authorize sublicenses, to use, reproduce, distribute, and display your User Content for the purposes of delivering the Service. The above licenses granted by you in User Content you submit to the Service shall be perpetual and irrevocable, except that with respect to any User Content that you have removed or deleted while maintaining your Service user account, or any User Content following any deactivation or deletion of your Service user account, you may specifically notify Qotient regarding the termination of the foregoing license from you to Qotient, specifically identifying the item(s) of User Content to which such termination applies, in which case the foregoing license will terminate within a commercially reasonable time after you provide such notice to Qotient. You understand and agree, however, that even following such termination, Qotient may retain, but not display or perform, server copies of such User Content. Notwithstanding anything to the contrary herein, the above licenses granted by you in user comments you submit are perpetual and irrevocable. Your access to the User Content is contingent on full payment of all services fees when due.
(c) Your Representations and Warranties Regarding User Content. You shall be solely responsible for your own User Content and the consequences of submitting such Content to the Service. In connection with User Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Qotient to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by Qotient and these Terms, and to grant the rights and license set forth in this Section, and (ii) your User Content, Qotient’s use of such User Content pursuant to these Terms, and Qotient’s exercise of the license rights set forth in this Section, do not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) violate any applicable law or regulation.
(d) Prohibited Uses of User Content. Except as otherwise permitted by these Terms, in connection with your User Content, you further agree that you will not publish, post, submit, transmit through or otherwise make available to or via the Service : (i) any falsehoods or misrepresentations that could damage Qotient or any third party; or (iii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate. It is your responsibility to check that storage of and access to your User Content via the Service will comply with laws applicable to you.
(e) No Responsibility for User Content. With the exception of the rights and licenses granted above, we do not obtain or control any rights in, and do not exert editorial control over, User Content; provided, however, that Qotient does reserve the right to remove any User Content at any time in its sole discretion. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to such User Content. Qotient adheres to industry standard policies and procedures to prevent data loss but does not make any guarantees that there will be no loss of User Content. Accordingly, any User Content that you transmit or contribute using the Service is at your own risk. Qotient expressly excludes liability for any loss of User Content no matter how caused.
7. Contributed Content Disclaimer. You understand that when using the Service you may be exposed to User Content from other Users and other third parties (together, the “Contributed Content”). Qotient does not endorse any Contributed Content. Under no circumstances will Qotient be liable in any way for or in connection with the Contributed Content, including, but not limited to, for any inaccuracies, errors or omissions in any Contributed Content, any intellectual property infringement with regard to any Contributed Content, or for any loss or damage of any kind incurred as a result of the use of any Contributed Content.
8. Non-Monitoring of Users and Contributed Content. You are entirely responsible for all User Content that you upload, post, transmit or otherwise make available through the Service. Qotient does not control Contributed Content and does not have any obligation to monitor such Contributed Content for any purpose. If at any time Qotient chooses, in its sole discretion, to monitor the Contributed Content, Qotient nonetheless assumes no responsibility for the Contributed Content, no obligation to modify or remove any inappropriate Contributed Content, and no responsibility for the conduct of the User or other person or entity submitting any such Contributed Content. You agree that you must evaluate, and bear all risks associated with the use of any Contributed Content, including any reliance on the accuracy, completeness, usefulness, or legality of such User Content or other Contributed Content.
9. Removal of Contributed Content. Qotient and its designees shall have the right (but not the obligation) in their sole discretion to refuse to make any Contributed Content available via the Service in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
10. Prohibited Uses of the Service.
(a) As a condition of your use of the Service, you hereby represent and warrant that you will not use the Service for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section) by these Terms.
(b) Any use by you of any of the Qotient Materials and Service other than as authorized in accordance with Section 4(a)(i) is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of the Service, use of the Service, access to the Service, or Contributed Content obtained through the Service, for any purpose other than for such authorized purposes.
(c) You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Service, or collect, or attempt to collect, personal information about Users or third parties without their consent.
(d) You agree not to intentionally interfere with or damage, impair or disable the operation of the Service by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or placing a disproportionate load on the Service with the intended result of denying service to other Users.
(e) You agree not to remove, circumvent, disable, damage or otherwise interfere with any security- related features of the Service, features that prevent or restrict the use or copying of any part of the Service, or features that enforce limitations on the use of the Service.
(f) You agree not to attempt to gain unauthorized access to the Service or any part of it, other accounts, computer systems or networks connected to the Service or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted through the Service.
(g) You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree neither to modify the Service in any manner or form (other than contributing User Content as enabled by the Service’s functionality and in accordance with these Terms), nor to use modified versions of the Service, including (without limitation) for the purpose of obtaining unauthorized access to the Service.
(h) You agree that you will not use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service.
(i) You agree not to utilize framing techniques to enclose any trademark, logo, or other Qotient Materials without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing Qotient’s name or trademarks without Qotient’s express written consent.
(j) You agree not to use any Qotient logos, graphics, or trademarks as part of the link without our express written consent.
(k) You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(l) You agree not to modify, adapt, translate, or create derivative works based upon the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(m) You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
(n) You agree not to have more than one user account, at any given time, and shall not create an user account using a false identity or information, or on behalf of someone other than yourself.
(o) You agree not to have a user account or use the Service if you have previously been removed by Qotient or previously been banned from using the Service.
(p) You agree not to collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service.
11. Subscription Term; Payments and Cancellation.
(a) You agree to pay all applicable fees for your subscription to the Service, as indicated on the Purchase Order (“Subscription Fee”) plus any applicable taxes or other charges as may be required, when due and payable in accordance with the Purchase Order. Qotient will invoice you for the Subscription Fee and any other applicable taxes and charges, and each invoice is due and payable by the due date indicated on the invoice.
(b) Your subscription period to access the Service is indicated on the Purchase Order (“Subscription Term”). If no Subscription Term is indicated on the Purchase Order, the Subscription Term is twelve (12) months. The Subscription Term is subject to automatic renewal, unless you or Qotient provides written notice that it does not intend to renew the subscription. Written notice of non-renewal must be sent at least ninety (90) days in advance of the end of the then-current Subscription Term. The Subscription Term ends on the expiration date and cannot be canceled before its expiration. All fees and charges are payable in advance and non-refundable, including after cancellation. If you wish to cancel your subscription, please visit the customer support area on the Service. Cancellation of memberships will take effect at the end of the applicable then-current billing period for which payment has been made in advance as described above.
12. Account and Password. When you subscribe to the Service or register as a User you will be asked to set up an account and provide a password. As you will be responsible for all activities that occur under your account and password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality and security of your account and password and for restricting access to your computer and mobile devices, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), you shall immediately notify Qotient so that Qotient may reset your password and you must take all other actions that Qotient reasonably deems necessary to maintain or enhance the security of Qotient’ computing systems and networks and your access to the Service. YOU ARE SOLELY LIABLE FOR LOSSES INCURRED BY YOU, QOTIENT OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
13. Dealings with other Users. Your correspondence or business dealings with other Users found on or through the Service are solely between you and such User. Qotient reserves the right, but has no obligation, to become involved in any way with any disputes you may have with such parties. YOU AGREE THAT QOTIENT WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH USERS ON THE SERVICE.
15. Service Availability. Whilst Qotient intends that the Service will be available 24 hours a day, seven days a week, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place. If for any reason Qotient has to interrupt the Service for longer periods than Qotient would normally expect, Qotient will use reasonable endeavors to publish in advance details of such activity on the Website or via an App notification. Qotient may make changes to or discontinue any of the media, web communities, products, or services available within the Service at any time, and without notice. In the case of technical problems you must make all reasonable efforts to investigate and diagnose problems before contacting Qotient. If you still need technical help, please email: support@Qotient.com.
16. Feedback. You agree that any feedback, analysis, suggestions and comments to Qotient provided by you (collectively, “Feedback”) will become the property of Qotient. AS FURTHER CONSIDERATION FOR YOUR ACCESS TO THE SERVICE, USER HEREBY ASSIGNS TO QOTIENT ALL RIGHT, TITLE AND INTEREST, INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS, IN AND TO THE FEEDBACK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USER AGREES THAT QOTIENT SHALL HAVE THE PERPETUAL, IRREVOCABLE AND WORLDWIDE RIGHT TO USE, COPY, DISPLAY, PERFORM, TRANSLATE, MODIFY, LICENSE, SUBLICENSE AND OTHERWISE EXPLOIT ALL OR PART OF THE FEEDBACK OR ANY DERIVATIVE THEREOF IN ANY EMBODIMENT, MANNER OR MEDIA NOW KNOWN OR HEREAFTER DEVISED WITHOUT ANY REMUNERATION, COMPENSATION OR CREDIT TO USER. User represents and warrants that User has the right to make the foregoing assignment and to grant to Qotient the rights granted under this Section 16 and that any Feedback which is provided by User to Qotient does not infringe any third-party intellectual property rights.
17. User Disagreements. You are solely responsible for your involvement with other Users of the Service. Qotient reserves the right, but has no obligation, to monitor disagreements between you and other Users. QOTIENT DISCLAIMS ALL LIABILITY RELATED TO ANY USER DISAGREEMENT.
19. INDEMNIFICATION; HOLD HARMLESS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS QOTIENT, AND ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE SERVICE; (II) YOUR USER CONTENT, INCLUDING QOTIENT’S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER CONTENT; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY QOTIENT.
20. DISCLAIMERS; NO WARRANTIES.
(a) ACKNOWLEDGMENT. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 20, AND SECTIONS 21 AND 22 BELOW, THE TERM QOTIENT INCLUDES QOTIENT’S PARENT, SUBSIDIARY, AFFILIATED AND OTHER RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP) AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS AND SUBCONTRACTORS.
(B) NO WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, QOTIENT DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM QOTIENT OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(C) “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS.” YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, USER CONTENT, CONTRIBUTED CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE THAT THE SERVICE MEETS THE NEEDS OF YOUR BUSINESS AND IS SUITABLE FOR THE PURPOSE FOR WHICH IT IS USED.
(D) SERVICE OPERATION AND CONTRIBUTED CONTENT. QOTIENT DOES NOT WARRANT THAT THE QOTIENT MATERIALS, USER CONTENT, CONTRIBUTED CONTENT, SERVICE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SERVICE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
(E) ACCURACY. QOTIENT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(F) HARM TO YOUR COMPUTER OR MOBILE DEVICE. YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICE OR ANY REFERENCE SITES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA.
21. LIMITATION OF LIABILITY AND DAMAGES.
(A) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL QOTIENT OR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF, OR THE INABILITY TO USE, THE QOTIENT MATERIALS AND USER CONTENT ON THE SERVICE OR ANY REFERENCE SITES, THE SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH QOTIENT, EVEN IF QOTIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) LIMITATION OF DAMAGES. IN NO EVENT SHALL QOTIENT OR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF ONE HUNDRED DOLLARS (USD $100) OR THE FEES PAID BY YOU (IF APPLICABLE) IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE.
22. Digital Millennium Copyright Act Compliance.
(a) Infringement Claims. If you are a copyright owner or an agent thereof, and believe that any User Content or other Contributed Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail).
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Service and that is to be removed or access to which is to be disabled, including the link or URL for all such material on the Service;
(iv) Information reasonably sufficient to permit Qotient to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Qotient’s designated Copyright Agent to receive notifications of claimed infringement is:
Copyright Agent: Justin Wright, Qotient Inc.; address: 440 N Wolfe Road, Sunnyvale, CA 94085
email: firstname.lastname@example.org telephone: +1 408-306-8405
FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC INFORMATION ABOUT WHERE INFIRNGING CONTENT MAY BE FOUND, WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.
(b)Notice And Takedown. If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below.
We may, at our discretion, deny access to the Service by, or disable and/or terminate the accounts of, Users who may be infringers.
(c) Copyright Counter-Notices. If content you posted on the Service was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:
a. To file a counter-notification with us, you must provide our Copyright Agent, at the address set forth above, with a written communication that sets forth the items specified below.
b. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.
(d) Elements of Counter-Notification. To expedite our ability to process your counter- notification, please use the following format (including section numbers):
1. Identify the specific URLs of (or other information sufficient to allow us to identify) material that Qotient has removed or to which Qotient has disabled access. 2. Provide your full name, address, telephone number, email address and, if you are a registered User, the User name of your Qotient account. 3. Provide a statement that you consent to the jurisdiction of the Southern District of New York and the Federal District Court for the judicial district in which your address is located (if your address is outside of the U.S.A.), and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above, or an agent of such person. 4. Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.” 5. Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address:
Copyright Agent: Justin Wright Qotient Inc.; address: : 440 N Wolfe Road, Sunnyvale, CA 94085
email: email@example.com telephone: +1 408-306-8405
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your Identifying Information set forth in the counter-notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Service. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).
(e) Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted on the Service is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of New York. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Elements of Counter-Notification.”
(a) Notice. Qotient may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Service. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after an email is sent, unless Qotient is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide Qotient with notices only by mail to the address indicated in subsection (l) below.
(b) Governing Law. These Terms shall be governed by and construed in accordance with (i) if you are a Subscribing Organization located in Australia, the laws of the State of New South Wales, (ii) if you are Subscribing Organization located in New Zealand, the laws of New Zealand, and if you are a Subscribing Organization located in any other country, including without limitation USA, the laws of the State of California, in each case without giving effect to any principles of conflicts of law.
(c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or the Service shall be filed only in the courts in and for (i) if you are a Subscribing Organization located in Australia, the State of New South Wales, (ii) if you are Subscribing Organization located in New Zealand, New Zealand, and (iii) if you are a Subscribing Organization located in any other country, including without limitation USA, the County of Santa Clara in the State of California, and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action.
(d) Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Qotient to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
(e) Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
(f) Assignment. The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Qotient without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
(g) No Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Qotient as a result of these Terms or use of the Service. You further acknowledge that by submitting User Content or other Contributed Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Qotient other than pursuant to these Terms.
(h) Survival. Sections 5, 6, 7, 9, 11 (other than your duty to update account information), 13, 15, 16, 17, 18, 19, 20, 21, 22 and 24 will survive any termination of these Terms or your account, whether by you or by Qotient.
(i) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
(j) Entire Agreement. This is the entire agreement between you and Qotient relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any Services Agreement that you may have entered into with Qotient. These Terms shall not be modified except in writing, signed by both parties, or by a change to these Terms made by Qotient as set forth in Section 3 above.
(k) CLAIMS. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(l) Disclosures. The services hereunder are offered by Qotient Inc., located at 440 N Wolfe Road, Sunnyvale, CA 94085