“Customer” means the legal entity that enters into the Customer Agreement.
“User” means one of Customer’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to use the Platform and have been supplied User identifications and passwords by Customer (or by Vendor at Customer’s request).
1. Proprietary Rights: We and our licensors exclusively own all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation or techniques we provide under these terms, and all technology available on the Platform. You agree not to modify, publish, transmit, reproduce, reverse-engineer, mirror, or in any other way exploit the Platform in whole or in part.
2. License Grant: Subject to these terms, we give you a personal, non-transferable, non-exclusive, and limited license (without the right to sublicense) to use the Platform as provided by us, in the manner permitted by the terms. The Platform is based in the United States and not customized for use in any other country. You may access and use the Platform only if it complies with laws of your country.
3. Your Responsibilities: You are responsible for providing the equipment and services that you need to access and use the Platform. QuotaFactory does not guarantee that the Platform is accessible on any particular equipment or device or with any particular software or service plan.
You are responsible for all activities that occur through your license, whether or not authorized by you.
Please do not share your license with any other person.
You will use the Platform only for your internal business purposes and in accordance with applicable laws, rules and regulations. You are responsible for all of your activities that occur within, through or as a result of your use of the Platform. You agree that you will not use the Platform for unlawful purposes or to engage in any illegal, offensive, indecent or objectionable conduct, including violation of any third party privacy or other rights. You agree that you will not use the Platform if you are under the age of majority in your place of residence or otherwise not fully able and competent to agree to these Terms. You are responsible for complying with all laws, rules and regulations (including those relating to internet, data and email privacy) that apply to your use of the Platform.
4. Export Regulations: Customer will comply fully with all export control laws and regulations of the United States and all other jurisdictions. Customer shall not and shall not allow any third party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for terrorist activity, or for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government.
5. Your Content: The Platform allows you to upload, transmit, gather, and use information and other content to and through the Platform (collectively, “Your Content”). You are solely responsible for the accuracy, quality, legality and means by which you acquired Your Content. You understand that QuotaFactory will use Your Content to provide the Platform to you. Under this Agreement QuotaFactory acquires no right, title or interest in or to Your Content.
6. Availability: We use commercially reasonable efforts to make the Platform available to you 24 hours per day, seven (7) days per week, excluding scheduled maintenance time, unavailability caused by you or any software, hardware or service not provided by us, unscheduled downtime and/or any cause beyond our reasonable control (including without limitation nature disasters, wars, terrorist act, civil disturbances, acts of any government or agency thereof, strikes or other labor problems, Internet service or other third party service providers’ failures or delays and systemic electrical, telecommunications or other utility outages or failures).
7. Force Majeure: Neither party will be liable or deemed to be in breach for any delay or failure in performance of this Agreement (except for the payment of money) or interruption of services resulting directly or indirectly from acts of God, civil or military authority, war, riots, civil disturbances, accidents, fire, earthquake, floods, strikes, lock-outs, labor disturbances, foreign or governmental order, or any other cause beyond the reasonable control of such party.
8. Enhancements: QuotaFactory may make modifications including periodic upgrades or enhancements and changes to the Platform at any time without notice to you. Any product related changes that remove or diminish the capabilities of the Platform, will entitle you to a pro-rated refund and your subscription will terminate forthwith. Any prepayment discount applied will not be impacted by early termination as a result of product related changes that remove or diminish the capabilities of the Platform.
9. Payment: Your license will not be activated until your first payment is received. Payments are due in accordance with the agreement. Monthly fees are automatically charged to the credit card or bank account that you provided when you registered for the subscription.
10. Overdue Charges: If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
11. Suspension of Service and Acceleration: If any amount owing by you under this or any other agreement is 5 or more days overdue we may, without limiting our other rights and remedies, suspend service to you until such amounts are paid in full. We will give prior notice that your account is overdue, before suspending service to you.
12. Taxes: You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with the agreement subscribing to the Platform by any authority. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
13. Term of Agreement: This Agreement commences on the date you first accept it and continues until all subscriptions hereunder have expired or have been terminated.
14. Cancellation and Refund: We require 30 days notice to process cancellation requests. If you have prepaid, you will be refunded for the period beyond the date the cancellation becomes effective. If you received a discount for prepayment, the refund amount will be adjusted to remove the discount if applicable.
15. Limitation of Liability: WE PROVIDE THE PLATFORM “AS IS.” WE DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
(a) YOU EXPRESSLY AGREE THAT USE OF THE PLATFORM IS AT YOUR SOLE RISK.
(b) QUOTAFACTORY SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY DAMAGES OR LOSS ARISING AS A CONSEQUENCE OF DOWNTIME OR UNAVAILABILITY.
(c) IN NO EVENT SHALL QUOTAFACTORY’S LIABILITY RELATED TO ANY OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, EXCEED THE TOTAL FEES PAID BY YOU FOR SUCH SERVICES. QUOTAFACTORY SHALL NOT IN ANY EVENT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS.
(d) QUOTAFACTORY, ITS AGENTS, AFFILIATES, LICENSORS OR THE LIKE, DO NOT REPRESENT OR WARRANT, EXPRESSLY OR IMPLIEDLY, THAT THE PLATFORM WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE PLATFORM, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT.
(e) QUOTAFACTORY, ITS OFFICERS, AGENTS, OR ANYONE ELSE INVOLVED IN PROVIDING THE PLATFORM SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE THE PLATFORM; OR FOR ANY DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO PROVIDER’S RECORDS, PROGRAMS, OR SERVICES.
16. Indemnification: You agree to indemnify us, our parent, officers, directors, employees, agents, representatives, affiliates, licensors or distributors from and against any loss, damage, liability or expense (including, but not limited to reasonable attorney’s fees) incurred by or awarded against us, to the extent that it arises under a claim based upon (i) any negligent, fraudulent, unlawful or willful acts or omissions done by you or anyone acting on your behalf or using your access rights.
17. Confidential Information: Customer and QuotaFactory agree to maintain the confidentiality of any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”) during the term of this Agreement and for a period of three (3) years after the termination of this Agreement; provided that to the extent the Confidential Information constitutes a trade secret(s) under law, the parties agree to protect such information for so long as it qualifies as a trade secret under applicable law. This section will not apply to: (a) any information that was in the public domain at or subsequent to the time such Confidential Information was communicated to the receiving party by the other party, (b) was rightfully in the receiving party’s possession free of any obligation of confidence at or subsequent to the time such Confidential Information was communicated by the other party, or (c) was developed by the receiving party or its employees, contractors or agents independently of and without reference to any Confidential Information. A disclosure of any Confidential Information in response to a valid order by a court or other governmental body or as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the receiving party will provide prompt advance written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent such disclosure. The receiving party shall not to use the Confidential Information of the other party for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party will protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care. The receiving party shall not make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The receiving party is liable for all violations of this Section 7 by its employees and consultants. Each party agrees to notify the other party in writing promptly upon discovery of any unauthorized access, disclosure, or use of the Confidential Information. Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of any Confidential Information and that the other party may seek, without waiving any other rights or remedies and without posting any bond, injunctive or equitable relief.
18. Entire Agreement: This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement.
19. Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable provided, however, that if Sections 11 and 12 cannot be modified to be valid and enforceable, this Agreement will be deemed invalid in its entirety.
20. Governing Law and Venue: This Agreement will be governed by the laws of the Commonwealth of Massachusetts without regard for its choice of law provisions. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of the Commonwealth of Massachusetts, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue.
21. Assignment: Neither party may assign this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, provided that no consent will be necessary if this Agreement is being assigned by a party to an acquirer of all or substantially all of the party’s assets (or the assets of the party’s applicable business unit), whether by merger, sale or exchange of stock, sale of assets or otherwise and in this case, the party may assign this Agreement by providing written notice to the other party.
22. Marketing: QuotaFactory may use Customer’s name and company logo on its customer list and web site.
23. Changes to Terms: We may change these terms. If we amend these terms, we will provide notice before the change takes effect. We may give notice by posting it on QuotaFactory’s website or by any other reasonable means. If you don’t agree to the change, you must cancel and stop using the Platform before the change becomes effective. If you do not agree to the new terms, you will be entitled to a pro-rated refund and your license will terminate forthwith. Otherwise, the new terms will apply to you.