Effective Date: January 1, 2016
2. Modification. 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. 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 STOP USING THIS SITE. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT WILL CONSTITUTE BINDING ACCEPTANCE. You agree that non-material 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.
4. Messages and Release. 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 or understandings that allow such marketing, we and/or such third parties may periodically send you messages of an informational, promotional, marketing, or advertising nature via email, messaging, or other means. We may share your account information or customer data with such parties. You agree that we may use you or your company or association name and logo in sales presentations, advertising materials, press releases, and similar marketing or promotional vehicles, and you waive and release all claims based on such use.
6. Separate Agreements. You may acquire, license and/or use products, services and/or content from this site. We reserve the right to require that you agree to separate agreements as a condition of your purchase, license and/or use of such products, services and/or content.
7. Ownership. The contents and materials provided on this site, including but not limited to this site, its services, software, customer data or content are protected by law, including, but not limited to, United States copyright, patent, trademark law and international treaties. The copyrights, patents, trademarks and all other intellectual property rights in the site, its services, software, customer data or content are owned by Qvinci Software exclusively. Except for the limited rights granted in this Agreement, all rights are reserved by us, and no rights, express or implied, are assigned to or transferred to you. You also acknowledge and agree that we own any amendments, improvements, continuations, suggestions, ideas, enhancements, enhancement suggestions or requests, feedback, creative or derivative works, or recommendations that you provide relating to the this site, the services, software, customer data or content or any intellectual property rights associated with same and that you will not be entitled to any compensation or other benefit on account thereof. No license, right, or interest in our logos, trade dress, service marks, or trademarks, patents, copyrights are granted to you under this Agreement or by your subscription to the site, its services, software, customer data or content and you agree not to remove or obscure any product identification or notices of proprietary restrictions.
8. 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. You agree to immediately notify us of any unauthorized use of your login ID, password, account, or any other breach of security. You agree not to allow any third party access to your account under your name or otherwise, and you agree to make every reasonable effort to prevent unauthorized third parties from accessing or using your account. You acknowledge that any such third-party access or use is prohibited and shall constitute grounds for termination of your account. You agree that we may audit your account to determine unauthorized access or use that exceeds the terms of this Agreement. You agree to cooperate with our audit and to provide reasonable assistance and access to information.
9. Service Level. You agree that there is no service level agreement for any period of Uptime for this site.
10. 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 our sole discretion, to suspend or terminate rights to use your account. To enable us to use the Registration Data internally, so that we are not violating any rights you might have in that Registration Data, you grant to us a nonexclusive license to (i) convert such Registration Data 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 Registration Data with other content by any method or means or in any medium whether now known or hereafter devised.
11. 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 security procedures consistent with prevailing industry standards to protect data, including but not limited to Registration Data, from unauthorized access by physical and electronic intrusion, provided, however, you agree that we shall not, under any circumstances, be held responsible or liable for situations (i) where data, including but not limited to Registration Data, or transmissions are accessed by third parties through illegal or illicit means, or (ii) where data, including but not limited to Registration 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 Registration Data, after discovery by us, and we will use reasonable efforts to promptly remedy any breach of security that permitted such unauthorized access.
12. Notice. 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, (iii) SMS message to your telephone number on record in your Registration Data, or (iv) written communication sent by first class mail to your address on record in your Registration Data. Such notice shall be deemed to have been received upon the expiration of 48 hours after mailing by first class mail or 12 hours after posting or sending by other means. You may give notice to us (such notice shall be deemed given when received by us) by any of the following: (a) electronic mail to email@example.com, 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, LLC, 1601 South MoPac Expressway, Suite 475, Austin, TX 78746, 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.
13. Warranty Waivers and Disclaimers. EXCEPT AS MAY BE PROVIDED IN ANY SEPARATE WRITTEN AGREEMENT SIGNED BY THE PARTIES OR ORIGINATING FROM THIS SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA, OR CONTENT ARE PROVIDED “AS-IS” AND WITH ALL FAULTS, AND NEITHER WE NOR ANY OF OUR LICENSORS, SUPPLIERS, REFERRAL AGENTS OR RESELLERS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH SITE, OR ITS SERVICES, SOFTWARE, CUSTOMER DATA OR CONTENT. QVINCI SOFTWARE AND ITS LICENSORS, SUPPLIERS, REFERRAL AGENTS AND RESELLERS SPECIFICALLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THIS SITE OR ITS SERVICES, SOFTWARE, CUSTOMER DATA OR CONTENT, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, SYSTEM INTEGRATION, OR DATA ACCURACY. YOU HERBY WAIVE ANY SUCH WARRANTIES, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NEITHER QVINCI SOFTWARE NOR ITS LICENSORS, SUPPLIERS, REFERRAL AGENTS OR RESELLERS REPRESENT OR WARRANT THAT THIS SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA OR CONTENT: (A) WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED, (C) WILL BE TIMLEY REPAIRED OR CORRECTED, OR (D) WILL BE FREE OF DEFECTS, VIRUSES, MALWARE OR OTHER HARMFUL COMPONENTS. THESE WAIVERS AND DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. NO PURCHASE, LICENSE, SUBSCRIPTION OR USE OF THE SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA, OR CONTENT IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE WAIVERS AND DISCLAIMERS. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED OR WAIVED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW AND LIMITED IN SCOPE AS REQUIRED BY APPLICABLE LAW.
14. Limitation of Liability and Exclusive Remedies. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL QVINCI SOFTWARE AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY DIRECT, 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 THIS SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA OR CONTENT, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF QVINCI SOFTWARE OR OUR LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE.
15. Links to This Site. We grant to you a limited, revocable, and nonexclusive right to create a hyperlink to this site provided that the link does not portray us or our products, content, or services in a false, misleading, defamatory, derogatory, or offensive matter. You may not use any logo, trademark, slogan, trade dress, service mark, or trade name that may be displayed on this site or other proprietary graphic or other image without our prior written consent.
17. Participation in Promotions of Advertisers. You may enter into correspondence with or participate in promotions of advertisers promoting their products, services or content on this site. Any such correspondence or participation, including the delivery of and the payment for products, services or content, are solely between you and each such advertiser.
18. Statistical Information. Qvinci Software may compile statistical information related to the performance of the site, and may make such information publicly available, provided that such information does not disclose your Registration Data. Qvinci Software retains all intellectual property and other rights in such statistical information.
19. 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 exclusively 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 you and we agree to submit to that jurisdiction and venue. The arbitration may be conducted by telephone, teleconference, 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, excluding its rules regarding conflicts of law. The controversy or claim shall be arbitrated on an individual basis, and shall not be joined or consolidated in any arbitration or other proceeding with any claim or controversy of any other party. The findings of the arbitrator shall be final and conclusively 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, including without limitation its own attorneys’ fees. Arbitration fees shall be split equally between the parties. Enforcements of any award or judgment shall be governed by federal law or 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.
20. Exclusive Jurisdiction and Venue. The courts of Travis County in the State of Texas, USA and the nearest U.S. District Court 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 and agree to submit to the jurisdiction of said courts.
21. Controlling Law. This Agreement shall be construed under the laws of the State of Texas, USA, excluding rules regarding conflicts of law. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
22. Intended for Use Only within the United States, Canada, and/or Australia. This site is intended for use only from within the United States, Canada, and Australia. We do not represent that this site is appropriate for use elsewhere. If you are located outside the U.S., then the following provisions shall apply: (i) The parties confirm that this Agreement and all related documentation is and will be in the English language, unless otherwise agreed to by Qvinci Software, 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 site, the software, the Services, the Customer Data or the contents of the site and you represent and warrant to Qvinci Software that you have complied with any regulations or registration procedures required by applicable law to make this Agreement, including, without limitation, the Software License Agreement contained herein, enforceable.
23. Onward Transfer of Personal Information Outside Your Country of Residence. Any personal information which we may collect on this site may be stored and processed in 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.
24. 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.
25. Force Majeure. We shall not be liable for damages or otherwise for any delay or failure of delivery arising out of causes beyond our reasonable control, including, but not limited to, acts of God, acts of civil or military authority, fires, riots, terrorism, floods, wars, embargoes, power failures, Internet disruptions, hacker attacks, or communications failures.