To review material modifications to this agreement, if any, and their effective dates, scroll to the bottom of the agreement.
Effective Date: January 1, 2013
- Parties. The parties to this Subscription Agreement (this “Agreement”) are you and the owner of this qvinci.com website and the Qvinci applications, QuickDash, LLC,
a Texas limited liability company, d/b/a Qvinci Software (“Qvinci Software”). If you are not acting on behalf of yourself as an individual, then "you", "your", and
"yourself" means your company or organization or the person you are representing, and you represent to us that you are authorized to act for and bind such company,
organization, or person. All references to "we", "us", "our", "this website" or "this site" shall be construed to mean Qvinci Software and this qvinci.com website,
as the context may require.
- Modification of Agreement. We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible through a link on
this site's home page and/or by giving you prior notice of a modification. You should check this Agreement periodically for modifications by scrolling to the
bottom of this Agreement for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS
TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL
CONSTITUTE BINDING ACCEPTANCE. You agree that non-material modifications will not be a basis for termination, and you agree that those modifications will be deemed
automatically accepted. “Non-material modification” means a modification that does not substantially and adversely affect you, when compared to the existing
agreement to which you are bound.
- Subscription Eligibility. Subscriptions are not available to minors under the age of 18 years of age.
- Subscription Services. Subscription services include access to the Qvinci application selected for the term of your subscription, for the applicable fees then
in effect (the "Services"). If we offer a free version of our application, and you are subscribed to a free version, the term of the subscription is month-to-month
and is subject to termination by us at any time, without notice. We reserve the right to update and modify the Services from time to time. The Services consist
of access for the term of your subscription to the selected Qvinci application in the cloud, pursuant to which data synced through our sync software can be viewed
in a variety of “business-intelligence” formats that enable you to make informed business decisions. The Services do not include add-on modules or applications
that we may offer from time to time at an additional cost. You are not receiving a license to use the Services, only a right of access for the term of your
subscription. The Qvinci application is software-as-a-service.
- Software License Agreement. The Services are enabled by a software application that must be downloaded and installed on your computer or on a server. This software
is called the Qvinci Sync Client. The Qvinci Sync Client is a sync application pursuant to which data in QuickBooks files (and/or other accounting program files
or financial reporting software) is automatically collected and, if the subscription covers multiple files, consolidated, into our Qvinci cloud application.
Accordingly, you and we are entering into an end-user license agreement, permitting your use of the Qvinci Sync Client, on the terms and conditions set forth in
the following Software License Agreement. The Software License Agreement is incorporated into this Agreement. In the event of a conflict between the Software
License Agreement and the other terms of this Agreement, pertaining to the Qvinci Sync Client, the Software License Agreement shall control.
- The parties to this Agreement are you, the licensee, and Qvinci Software. If you are not acting on behalf of yourself as an individual, then "you" means your company or organization.
- The Software licensed under this Agreement consists of computer programs only in compiled, object code form, referred to as the Qvinci Sync Client (the "Software").
- The term of the license granted herein for the registered version of the Software shall be on a subscription basis with a term beginning with your acceptance of this Agreement and continuing for so long as you have a valid subscription for the Services.
- If you are a registered user of the Software, you are granted non-exclusive rights to install and use the Software on any computer or workstation and/or to install and use the Software and/or transmit the Software over an internal computer network.
- You may not: (i) permit others to use the Software, except as expressly provided above for authorized network use; (ii) modify or translate the Software; (iii) reverse engineer, decompile, or disassemble the Software, except to the extent this restriction is expressly prohibited by applicable law; (iv) create derivative works based on the Software; (v) merge the Software with another product; (vi) copy the Software, except as expressly provided above; or (vii) remove or obscure any proprietary rights notices or labels on the Software.
- Qvinci owns the Software, any physical copies thereof, and all intellectual property rights embodied therein, including copyrights and valuable trade secrets embodied in the Software's design and coding methodology. The Software is protected by United States copyright laws and international treaty provisions. This Agreement provides you only a limited use license, and no ownership of any intellectual property. We reserve the right to require you to transfer possession of any physical copies of the Software to us for purposes of re-issue of replacement copies.
- You will be granted authorized login protocols for the Services, and you agree not to use the Services in excess of your authorized login protocols. You agree not to access (or attempt to access) this site by any means other than through the interface we provide, unless you have been specifically allowed to do so in a separate agreement. You agree not to access (or attempt to access) this site through any automated means (including use of scripts or web crawlers).
- You are not authorized to (i) resell, sublicense, transfer, assign, or distribute the site, its Services or content, (ii) modify or make derivative works based upon the site, its Services or content, (iii) "frame" or "mirror" any site, its Services or content on any other server or Internet-enabled device, or (iv) reverse engineer, decompile, or disassemble the Services or their enabling software for any purpose.
- You are not authorized to, and you agree not to, use our Services or servers (i) for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable (the designation of any such materials is entirely at our sole discretion), (ii) for any illegal or illegitimate business purpose, or (iii) to transmit any spam, malware, or virus.
- You must accept all updates, fixes, and upgrades to the applications for which you are subscribing. We may modify, enhance, replace, or make changes to the Services, in our sole discretion at any time and from time to time; provided that for any paid subscriptions, we will maintain reasonable equivalence in terms of features and capabilities.
- For the purposes of customer service, technical support, interaction with customers, and marketing services or products of third parties with whom we have (now or in the future) agreements that allow such marketing, we and/or such third parties may periodically send you messages of an informational or advertising nature via email, messaging, or other means. We may share your account information with affiliated parties. If you are subscribing to a paid Qvinci application, you may “opt out” of receiving these messages or information sharing by sending an email to email@example.com requesting opt out and specifying which messages you wish to opt out of. You acknowledge that by “opting out” you will not receive messages about upgrades and enhancements; however, we may still send messages of a technical nature. If you are subscribed to a free Qvinci application, you agree to receive the messages described in this subsection, in consideration of us providing the Services for which you are subscribed, and you may not opt out. You agree that we may use your company name in a general (but not necessarily complete) list of our customers, for so long as you or your company is a subscriber.
- You acknowledge that you are responsible for backing up your Customer Data (as defined in Section 14.3) and that we do not assume any liability for the loss or corruption of any data.
- Ownership. The material provided on this site and via our Services, and the Software, are protected by law, including, but not limited to, United States copyright law and international treaties. The Software, the Services, and the copyrights and all intellectual property rights in this material are owned by us. Except for the limited rights granted in this Agreement, all rights are reserved by us, and no rights, express or implied, transfer to you. You also acknowledge and agree that we own any suggestions, ideas, enhancement suggestions or requests, feedback, or recommendations that you provide relating to the Software or the Services, and that you will not be entitled to any compensation or other benefit on account thereof. No license, right, or interest in our logos or trademarks is granted to you under this Agreement, and you agree not to remove any product identification or notices of proprietary restrictions.
- Subscription Term. The term of your subscription shall be specified during the registration process. You may purchase one or more additional subscriptions at any time in accordance with the terms and conditions posted at this site.
- Termination. You agree that we may terminate your account and access to the Services for cause without prior notice, upon the occurrence of any one of the following: (i) any material breach of this Agreement, including without limitation, any failure to pay fees as they become due or any unauthorized use of the site or Services, or (ii) requests by law enforcement or other government agencies. Termination of your account includes (i) removal of access to all Services, and (ii) deletion of your login data, password, and all related information. Further, you agree that any termination shall be made in our sole discretion, and that we will not be liable to you or any third-party for any termination of your account or access to Services. If we elect to terminate this Agreement for cause pursuant to clause (i) above, we may elect, in our sole discretion, not to refund any prepaid fees or other amounts to you, and you consent to our retention of such fees or other amounts, subject to the terms and conditions set forth in this Agreement (including, without limitation, Section 28 (Arbitration)). If we elect to terminate this Agreement for cause pursuant to clause (ii) above, we may retain prepaid fees or other amounts if the third-party request for termination is shown to be based on facts that constitute a material breach of this Agreement by you, subject to the terms and conditions of this Agreement (including, without limitation, Section 28 (Arbitration)). If we elect to terminate this Agreement without cause, or if you elect to terminate this Agreement on the basis of a material modification to which you do not agree and for which you have given us 10 days’ notice of intent to terminate (and we have not resolved the matter within that 10-day period), then we will give you a pro rated refund of any unaccrued, prepaid fees you have paid for the balance of the term that would have been applicable but for the termination.
- Your Account-Related Responsibilities. You are responsible for maintaining the confidentiality of your login ID, password, and any additional information that we may provide regarding accessing your account. If you knowingly share your login ID and password with another person who is not authorized to use the Services, this Agreement is subject to termination for cause. You agree to immediately notify us of any unauthorized use of your login ID, password, or account or any other breach of security. You agree not to allow any third party access to your account for purposes of using the Services under your name, and you acknowledge that any such use is prohibited and grounds for termination of your account. We may audit your account to confirm authorized or unauthorized use.
- Subscription Fees; Periodic Payment; ROSCA Disclosures; Free Trials.
- You agree to pay subscription fees as specified in the registration process. Payment of subscription fees may be by credit card online at this site or by any other method approved by us. Subscription fees are non-refundable, unless expressly provided otherwise on this site or agreed by us in a separate agreement at the time of the subscription. If for any reason we are unable to charge your credit card with the full amount of the fees, or if we are charged back for any fee previously charged to your credit card, you agree that we may pursue all available remedies to pursue payment, including without limitation, suspension or termination of your account and all rights to the Services. Your card charge will begin upon activation of your account, not when usage of the application begins.
- In accordance with the Restore Online Shoppers Confidence Act (ROSCA), you hereby authorize Qvinci to charge the credit card used in the registration process, as follows: charges will be for access to the Qvinci application selected (and for any add-on modules selected), for the dollar amount and billing periods (including recurring billing periods and charges) specified in the registration process. If the credit card authorization fails, we will request updated credit card information. However, if you do not provide updated credit card information that successfully authorizes within 72 hours after notice, we may terminate your account and rights to all Services from this site. If we offer a free version of our application, and you are subscribed to that version, you acknowledge that we reserve the right in the future to charge for any such version. If we decide to begin charging for a previously-free version of our application, we will give not less than 30 days’ notice to subscribers to such free version, by posting on our website, email, and/or any other means we deem reasonable and effective, so that any subscribers to a version of our application that had been free who wish to cancel prior to charges beginning may have sufficient time to do so.
- If you initially subscribed pursuant to a free-trial offer, your credit card information will be taken, but your card will not charged until the end of the free trial. If you cancel prior to the end of the free trial, your card will not be charged. If you do not cancel prior to the end of the free trial, your card will be automatically charged upon the expiration of the free trial and on a recurring monthly basis thereafter until you either cancel or change to annual billing. We may terminate any free trial at our discretion prior to the end of the free-trial period. The limited warranty set forth in Section 16 does not apply during any free-trial period.
- Technical Support; Integration. We will answer questions by live chat during our regular business hours regarding the use of the Services. Our regular business hours currently are 9 am to 5 pm Monday – Friday, Austin, Texas time, excluding holidays. Our response time will generally be within four hours after a help request is submitted through our system or the next business day if the request is submitted on a non-business day or on a business day with less than five hours remaining in the day at the time submitted. Unless otherwise agreed pursuant to a separate, written agreement between us, all integration and configuration requirements are your responsibility to implement, and in any event are solely at your expense. We will, however, answer any questions you may have via our live chat technical support during normal business hours. Live chat is provided at no charge. We are not obligated to provide any maintenance or similar support, and we do not provide technical support for any non-Qvinci applications, software, or operating systems.
- Data Management, Use, and Security.
- We will not collect or sync any Sensitive Data. The term “Sensitive Data” means social security numbers, credit card numbers, and bank account numbers. You acknowledge that we may directly and remotely communicate with devices synced to the Qvinci application for purposes consistent with the provision of the Services, including, without limitation, (i) collection and consolidation of financial data from the synced application(s), excluding Sensitive Data, (ii) verifying your credentials, (iii) issuing reports and alerts such as automated support requests and alert messages, (iv) providing upgrades, fixes, maintenance, configuration protocols, or similar actions as we deem appropriate for provisioning the Services and the Software, and (v) extracting usage information, service performance information, and infection logs. These communications may include, without limitation, SMS text messages and other push notifications. Data collected may include proprietary and/or personal information, including, without limitation, names, email addresses, telephone numbers, and other contact details, account usernames, and IP addresses.
- The data that is collected and synced will be subjected to the following encryption standards: 2,048 Bit SSL encryption for the financial reporting data transmitted; the key (your password) is encrypted with 128 bit TTL encryption. We will use reasonable care in storing, accessing, and managing such data, including, without limitation, limiting internal access to such data to only those employees of ours that have a valid reason and need to obtain access to such data.
- Except as provided in this Agreement or otherwise agreed by you in writing, we will not (i) access or use data in electronic form collected through the Services from you (“Customer Data”), other than as necessary to facilitate the Services; and (ii) give any third party access to Customer Data. Notwithstanding the foregoing restrictions, we may disclose Customer Data as required by applicable law or by proper legal or governmental authority. We will give you prompt notice of any such legal or governmental demand and reasonably cooperate with you in any effort to seek a protective order or otherwise to contest such required disclosure, at your request and expense. You warrant that you have obtained any and all necessary permissions and provided the necessary notifications to share the Customer Data with us for the purposes described in this Agreement.
- You acknowledge that one of the Services anticipated to be added by us is benchmarking of customer data against like-kind businesses by SIC for a given geographical area. Accordingly, in consideration of us licensing the Software to you and granting you access to the Services pursuant to the terms of your subscription, you grant us an irrevocable, perpetual license, on the terms and conditions set forth herein, to aggregate your Customer Data with other data for the purpose of providing benchmarking data against which a customer can measure the performance of its or his unit(s). This license includes, without limitation, the right to market and sell (i) one or more benchmarking module add-ons to any of our products (now existing or offered later), and (ii) benchmarking data to third parties, for research, marketing, advertising, or other commercial purposes. Any Customer Data that is aggregated with other data for benchmarking will be anonymized and pooled with a sufficient amount of other customer data (including, without limitation, a sufficiently large geographical area), so that your Customer Data cannot be identified or connected to you. We represent and warrant that no specific, identifiable data collected from you will be viewable by or made available to any third party not authorized by you to receive it (except as permitted in this Agreement). No license fee or royalty will be payable by us to you for our use of Customer Data as permitted in this Agreement. Our right to preserve and use your Customer Data in anonymized form for benchmarking purposes will survive the termination of this Agreement. Except for the license and rights granted to us in this Agreement, you possess and retain all right, title, and interest in and to your Customer Data, and our use and possession of such data is solely as your agent.
- We will comply with all applicable federal and state laws and regulations governing the handling of Customer Data.
- We will promptly notify you of any actual or potential exposure or misappropriation of Customer Data (“Leak”) that comes to our attention. We will cooperate with you and with law enforcement authorities in investigating any such Leak, at our expense. We will likewise cooperate with you and with law enforcement agencies in any effort to notify injured or potentially injured parties, and such cooperation will be at our expense, except to the extent that the Leak was caused by you. You acknowledge and agree, however, that we shall not have any liability to you for damages caused or alleged to have been caused by any Leak.
- Qvinci Software agrees that violation of the provisions of this Section 14 might cause you irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy available to you under this Agreement, you will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
- Service Level Agreement. We guarantee that the Services for any paid subscription will have an Uptime of at least 99.9% on a monthly basis. “Uptime” means access to the paid Qvinci application(s), subscribed to by you, excluding periods of downtime for (i) scheduled maintenance, (ii) upgrades, (iii) a problem caused by you, (iii) taking the application offline as a defensive measure against any hacker, denial-of-service, or similar attacks, and/or (iv) force majeure. Your sole remedy for a breach of the Uptime guarantee in this Section 15 is a credit, in the form of an extension of service, as follows: for each period over which Uptime is calculated, for each day or partial day of downtime within that period in breach of the guaranteed Uptime, you will receive two days of extension of the Services for which you are subscribed, at no charge. There is no service level agreement for any version of the Qvinci application that is made available for subscription at no charge.
- Limited Warranty. We warrant that, for any paid subscription term, the Software and the Services will operate in substantial conformance with the then-current advertised standards, under normal use. We will use reasonable efforts to remedy any significant non-conformance in the Software or the Services that is reported to us and that we can reasonably identify and confirm. We will extend credit via an extension of your subscription for any Services downtime you incur as a result of our breach of this warranty; this credit is separate from the credit described in Section 15 (Service Level Agreement), and shall be calculated as follows: for each day or partial day of downtime caused by our breach of the limited warranty set forth in this Section 16, you will receive two days of extension of the Services for which you are subscribed, at no charge. This warranty does not apply to any Qvinci application subscribed for on a free basis. Except for any Uptime guarantee contained in Section 15, this Section 16 sets forth your sole and exclusive remedy and our entire liability for any breach of warranty or other duty relating to the Software or the Services. The intent of this Section 16 is to cover occurrences not covered under Section 15.If you receive a credit for an occurrence under Section 15, then no credit shall be due under this Section 16 for the same occurrence. If you receive a credit under this Section 16 for an occurrence, then no credit shall be due under Section 15 for the same occurrence. Any unauthorized modification of the Software or the Services, tampering with the Software or the Services, use of the Software or the Services in a manner inconsistent with the intended uses, or any other breach of this Agreement by you voids this warranty and the indemnity set forth in Section 19.2.
- Warranty Disclaimers. EXCEPT AS MAY BE EXPRESSLY PROVIDED ELSEWHERE IN THIS AGREEMENT, (1) THE SERVICES, SOFTWARE, CONTENT, AND PRODUCTS ON THIS SITE ARE PROVIDED "AS-IS" AND WITH ALL FAULTS, (2) NEITHER WE NOR ANY OF OUR LICENSORS, SUPPIERS, OR RESELLERS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH PRODUCTS, SERVICES, SOFTWARE, AND/OR CONTENT, AND (3) QVINCI SOFTWARE AND ITS LICENSORS, SUPPLIERS, AND RESELLERS SPECIFICALLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THIS SITE OR PRODUCTS, THE SERVICES, SOFTWARE, AND/OR CONTENT ACQUIRED FROM THIS SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, SYSTEM INTEGRATION, OR DATA ACCURACY. NEITHER QVINCI SOFTWARE NOR ITS LICENSORS, SUPPLIERS, OR RESELLERS REPRESENT OR WARRANT THAT THIS SITE, THE SOFTWARE, THE PRODUCTS, THE SERVICES, AND/OR CONTENT: (A) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B) OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (C) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED, OR (D) WILL BE FREE OF DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS. THESE DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. NO PURCHASE OR USE OF THE ITEMS OFFERED BY THIS SITE IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE DISCLAIMERS. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW.
- Limitation of Liability. EXCEPT AS MAY BE EXPRESSLY PROVIDED ELSEWHERE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY FOR DAMAGES EXCEED THE GREATER OF (A) THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICES OVER THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR (B) ONE HUNDRED DOLLARS. IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL EITHER PARTY AND/OR ITS LICENSORS, SUPPLIERS, OR RESELLERS BE LIABLE TO THE OTHER PARTY OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, GOODWILL, WORK STOPPAGE, OR COMPUTER MALFUNCTION, OR ANY OTHER KIND OF COMMERCIAL DAMAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, THE SOFTWARE, THE SITE, AND/OR THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES OR THIS SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS, SUPPLIERS, OR RESELLERS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- You agree to indemnify and hold us harmless from and against (i) any claims that your Customer Data infringes the intellectual property rights of a third party (provided that we notify you within 10 days of any claim being made or proceeding instituted against us, and that we have not acknowledged the validity of any such claim or proceeding or taken any action that might impair your ability to contest the claim or proceeding), (ii) any costs incurred as a result of a legal proceeding brought by a third party to obtain your Customer Data, (iii) any loss, damage, or costs arising from your breach of this Agreement, and (iii) any sales taxes or other taxes arising from your use of the Services (excluding any income tax on our revenue from fees for providing the Services). You acknowledge and agree that you are responsible for the legality of your Customer Data, as well as its quality and accuracy. Your liability, if any, under this paragraph is limited to an amount equal to the limitation of liability set forth in Section 18, multiplied by two.
- We agree to indemnify and hold you harmless from and against any claims that our Software or the Services infringe the intellectual property rights of a third party, provided that (i) you notify us within 10 days of any claim being made or any proceedings instituted against you, (ii) you cease using the Software or the Services that are the subject of any such claim or proceeding, immediately upon written request from us, and (iii) you have not acknowledged the validity of any such claim or proceeding or taken any action that might impair our ability to contest the claim or proceeding. We acknowledge and agree that we are responsible for the legality of our Software and the Qvinci application. Our liability, if any, under this paragraph is subject to the limitation of liability set forth in Section 18, multiplied by two.
- If one party is obligated to indemnify the other party under this Section 19, the indemnifying party shall be entitled to make the decisions pertaining to defending or settling the claim, and the other party shall fully cooperate. The indemnifying party has the right to modify the item(s) that are the subject of the claim or to license third-party intellectual property so as to remove the alleged infringement, or to terminate this Agreement if any such modification or licensing is deemed commercially impractical by the indemnifying party. If we are the indemnifying party and elect to terminate this Agreement, we will give you a pro rata refund for all unaccrued, prepaid fees if such fees equal or exceed one full month. If you are the indemnifying party and elect to terminate this Agreement, we shall be entitled to retain all fees paid by you prior to such termination, including any unaccrued, prepaid fees.
- Confidential Information. You agree that all non-public information that we provide regarding the Services, including without limitation, our pricing, marketing methodology, and business processes, is our proprietary confidential information. You agree to use this confidential information only for purposes of exercising your rights as our customer in strict compliance with this Agreement, and you further agree not to use or disclose this confidential information for a period of two years after termination of this Agreement. We agree that all non-public information that you provide, including your Customer Data, is your proprietary confidential information, subject to our use rights as set forth in this Agreement. We agree to use this confidential information only for purposes of exercising our rights as provider of the Services (including, without limitation, the right to use your Customer Data in anonymized form for benchmarking purposes as set forth in this Agreement) in strict compliance with this Agreement, and we further agree not to use or disclose this confidential information (except as permitted under this Agreement) for a period of two years after termination of this Agreement.
- Intended For Use Only In North America and Australia. This site is intended for use only from within the United States, Canada, and/or Australia. We do not represent that this site is appropriate for use elsewhere. Access to this site from any location where its content is illegal is not authorized. If you are located outside the U.S., then the following provisions shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui siy rattache, soient rediges en langue anglaise (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); and (ii) you are responsible for complying with any local laws in your jurisdiction that might impact your right to import, export or use the Software, or use the Services, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this Agreement, including, without limitation, the software license contained herein, enforceable.
- Onward Transfer of Personal Information Outside Your Country of Residence. Any personal information that we may collect on this site, and all Customer Data, will be stored and processed in our servers located only in the United States. If you reside outside the United States, you consent to the transfer of personal information outside your country of residence to the United States.
- Export Control. This site provides Services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The user of this site ("User") acknowledges and agrees that the site, the Software, and the Services shall not be used in, and none of the underlying information or technology may be transferred or otherwise exported or re-exported to, countries to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or to or by any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and regulations and assume sole responsibility for obtaining licenses to export or re-export as may be required. You agree to not to export or re-export the Software in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Software from the U.S. By downloading or using the Software and/or the Services, you agree to the foregoing restrictions and represent and warrant that you will comply with these conditions.
- Registration Data. Registration is required for you to establish an account at this site. You agree (i) to provide certain current, complete, and accurate information about you as prompted to do so by our online registration form ("Registration Data"), and (ii) to maintain and update such Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide such Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in its sole discretion, to suspend or terminate rights to use your account. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive license to (i) convert such information into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of using digital information, and (ii) combine the information with other content provided by us in each case by any method or means or in any medium whether now known or hereafter devised.
- Security. You shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet. We shall implement reasonable and appropriate security procedures consistent with prevailing industry standards to protect data from unauthorized access by physical and electronic intrusion; provided, however, unless resulting from our failure to perform the forgoing obligations, you agree that we shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to us at the time. We will promptly report to you any unauthorized access to your data promptly upon discovery by us, and we will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in your data is required, you shall be solely responsible for any and all such notifications at your expense.
- Notices. We may give notice to you by means of (i) a general notice in your account information or, if the notice is general in nature (not specific to you), by posting on our website , (ii) electronic mail to your e-mail address on record in your Registration Data, or (iii) written communication sent by first class mail to your address on record in your Registration Data. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing by first class mail) or 12 hours after sending by email. You may give notice to us (such notice shall be deemed given when received by us) at any time by any of the following: (a) electronic mail to firstname.lastname@example.org, with “Customer Notice, Attention:Director of Customer Support” in the subject line; (b) written communication sent by first class mail to our address provided in this Agreement (as it may be changed as provided in any modification of this Agreement); or (c) written communication to our address delivered by a nationally-recognized overnight delivery service. Our current address for notice is Qvinci Software, 2211 S IH 35, Suite 301, Austin, TX 78741, in either case, addressed to the attention of "President of the Company". Notices will not be effective unless sent in accordance with the above requirements.
- Arbitration. Except for any action to protect intellectual-property rights or to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Austin, Texas, USA, and may be conducted by telephone or online. Both parties waive any objections or defense based on lack of personal jurisdiction or venue. The arbitrator shall apply the laws of the State of Texas, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Each party shall bear its own costs of arbitration. Arbitration fees shall be split equally between the parties. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover reasonable attorney's fees and costs incurred as a result of such filing.
- Jurisdiction and Venue; Applicable Law. The courts of Travis County in the State of Texas, USA and the nearest U.S. District Court (or state district court, as applicable, if no federal jurisdiction) shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. Both parties waive any objections or defense based upon lack of personal jurisdiction or venue. The laws of the State of Texas, USA shall apply to all issues in dispute, excluding its rules regarding conflicts of law.
- Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
- Force Majeure. We shall not be liable for damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, fires, riots, wars, embargoes, internet disruptions, hacker attacks, or communications failures.
- Survival. Any provisions of this Agreement the survival of which is necessary for the interpretation or enforcement of this Agreement shall continue in full force and effect in accordance with their terms, notwithstanding the expiration or termination of this Agreement.
- U.S. Government End-Users. We provide the Software and the Services, including related technology, for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Software and/or the Services include only those rights customarily provided to the public as provided in this Agreement. This customary commercial license for the Software is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. Unpublished rights are reserved under the copyright laws of the United States.
- Assignment. You may not transfer any of your rights to use the Software or the Services or assign this Agreement to another person or entity without first obtaining prior written approval from us. We agree not to withhold approval unreasonably. We may assign any of our rights and/or obligations under this Agreement, and we agree to notify you promptly of any such assignment.
Material Modifications Since January 1, 2013: none.