Terms and Conditions Applicable to the Qnext Service
PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS OF USE (“SERVICE TERMS”). YOUR USE OF THE QNEXT SERVICE IS CONDITIONED UPON YOUR ACCEPTANCE OF THESE SERVICE TERMS WITHOUT MODIFICATION. BY ACCESSING OR USING THE QNEXT SERVICE INCLUDING ANY ASSOCIATED SOFTWARE OR WEB SITES, YOU AGREE TO BE LEGALLY BOUND BY THESE SERVICE TERMS, INCLUDING, WITHOUT LIMITATION ANY ADDITIONAL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THESE SERVICE TERMS. IF YOU DO NOT AGREE TO THESE SERVICE TERMS, YOU MUST IMMEDIATELY DISCONTINUE YOUR USE OF THE QNEXT SERVICE.
1. Your Relationship with Qnext.
1.1. Your use of Qnext services, including any associated products, software, and web sites (collectively, the “Services”) is subject to these Service Terms, which is a binding legal agreement between you and Qnext Corp, a Canadian corporation, doing business as Qnext (“Qnext”), whose principal place of business is at Toronto, Canada . “You” means the individual person or legal entity subscribing for use of the Services. You should print or otherwise save a copy of these Service Terms for your records.
2. Accepting the Service Terms.
2.1. In order to use the Services, you must first agree to these Service Terms. You may not use the Services if you do not accept the Service Terms. You can accept the Service Terms as follows:
(a) By clicking “accept” where this option is made available in the user interface for the Services, or as part of the download of any content or software associated with the Services; or
(b) By actually using the Services. In such a case, you understand and agree that Qnext will treat your use of the Services as your continuing acceptance of the Service Terms for the duration of your use of the Services.
3. Requirements for Use of the Services.
3.1. The Services are intended and offered only for lawful use by individuals or organizations with the legal capacity and authority under applicable law to enter into a contract for such services. QNEXT DOES NOT OFFER SERVICES TO MINORS OR WHERE PROHIBITED BY LAW. By registering for and/or by using the Services, you represent and warrant that you have the legal capacity and authority to enter into this agreement and that you will use the Services only in accordance with the Service Terms and all applicable laws.
3.2. You agree to provide accurate and complete information when you register for use of the Services and you agree to keep such information accurate and complete during the entire time that you use the Services.
3.3. Qnext may ask you from time to time to establish a user name, email address or password to access or use the Services. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password. In addition, you may invite and permit others to access your information or other content via the Services (collectively your “Community”). You are solely responsible for the use of the Services by your Community and for any consequences arising from such use.
4. Modification of the Service Terms.
4.1. Qnext may, in its sole discretion, supplement or modify the Service Terms without prior upon written notice to you. Any new or modified Service Terms will be effective immediately upon their publication upon the earlier of your acceptance of those terms or your continued use of the Services Site, following receipt of notification of such change.
4.2. If you do not agree to be bound by any changes to the Service Terms, your sole and exclusive remedy is to immediately stop all use of the Services. Your continued use of the Services following the publication of any revised version of the Service Terms will constitute your acceptance of such revised version.
5. Acceptable Use of the Services. QNEXT SHALL HAVE THE RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF THE SERVICES TO USERS WHO ARE DEEMED BY QNEXT TO BE USING THE SERVICES (a) IN A MANNER THAT VIOLATES THE SERVICE TERMS, (b) IN A MANNER NOT REASONABLY INTENDED BY QNEXT, OR (c) IN VIOLATION OF LAW.
6. Software License.
6.1 Subject to your compliance with the Service Terms, Qnext, hereby grants you a limited, personal, non-sub licensable, non-transferable, nonexclusive license to download, install and use any software provided to you by Qnext as part of the Services (the “Software“) on the number and type of devices specified for such use by Qnext. The Software may be used only in conjunction with the Services, and must be used in accordance with any instructions provided to you by Qnext. Software also includes any documentation (whether included in the download or accessible online), and any Updates provided by Qnext pursuant to Section 8 below.
6.2 The Software is licensed, not sold to you. You may not sell, assign, rent, lease, distribute, export, transfer or otherwise grant rights to third parties with regard to all or any part of the Software. You may not modify, reverse-engineer, decompile, disassemble, or attempt to discover the source code, structure or sequence, or otherwise hack, the Software, and have no rights to create derivate works from the Software.
7. Your Conduct. As a condition of your use of the Services, you agree that you and your Community will comply with the Qnext Code of Conduct (“Code of Conduct“), as published on the Services Site. Without limiting the foregoing, you agree that you will not use the Services: (a) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (b) to violate any applicable law, statute, ordinance or regulation; (c) to disseminate any content that is in Qnext determination is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable under applicable laws or community standards; or (d) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You are solely responsible for all Content (defined in Section 12.2) that you or your Community uploads, posts, emails, transmits, or otherwise disseminates in connection with the Services, and you will be solely responsible for any damage to any party resulting from any such actions with respect your Content.
8. Modifications to the Services; Updates. Qnext may, at its sole discretion, modify, add, or remove features or functions to or from the Services, or to provide programming fixes, enhancements, updates and upgrades, to the Software (collectively “Updates“). Notwithstanding the foregoing, you agree that Qnext has no obligation to provide you with any Updates, or make available to you any subsequent versions of the Software. You acknowledge and agree that Qnext, in its sole discretion, may modify, discontinue or suspend your ability to use any version of the Software, and/or disable any Software you may already have accessed or installed without any notice to you, for the repair, improvement, and/or upgrade of the underlying technology, or for any other reason. You agree that Qnext shall have no liability to you or any third party for any modification or cessation of the Services.
10. Termination of Services.
10.1. Without limiting other remedies, Qnext may limit, suspend, or terminate your use of the Services or Software, and prohibit your access to the Services Site, if (a) Qnext believes that you or any member of your Community is in breach of the Service Terms, is infringing any third party’s intellectual property rights, or is engaging in fraudulent, immoral, disruptive or illegal activities, (b) if Qnext is required to do so by law, or (c) the provision of Services to you is, in Qnext’s opinion, no longer commercially viable. Qnext shall effect such termination by providing notice to you, and/or by preventing your access to the Services.
Unless otherwise agreed in writing by Qnext, such termination shall not entitle you to any refund of fees paid in advance.
10.3. Upon termination of your subscription for use of the Services, Qnext shall have no obligation to maintain your user account or to forward any data to you or any third party. You agree that Qnext may retain (but shall have no obligation to retain) your account information after your subscription has been terminated. The termination of your right to use the Services howsoever occurring shall not terminate your obligation to pay any amounts owed by you to Qnext as of the date of such termination.
10.4. Upon termination of your right to use the Services you acknowledge and agree that (a) your license to use the Software shall terminate, and (b) you will remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under your control. The provisions of the following sections of these Service Terms shall survive any such termination, howsoever occurring: 7, 10.2, 10.3, 10.4, 11.1, 12, 14, 15, 16, 19, and 20.
11. Payment of Fees; Paid Subscription Renewal
11.1. If you subscribe for a premium, fee based version of the Services (“Premium Version”), you agree to promptly pay to Qnext all fees applicable to such Premium Version as such fees come due. Unless otherwise stated or waived by Qnext, all fees are exclusive of applicable taxes (e.g., sales, use or value added tax), and you are solely responsible for the payment of any such taxes that may be imposed on your use of the Premium Version. In the event you have elected to pay such fees via an automatic periodic charge applied to your credit card or bank account, you hereby acknowledge and agree that Qnext has the authority to implement such charges without the necessity of obtaining further authorization from you. You agree to provide Qnext with updated credit card or bank account information if previously provided account information becomes invalid. If payment is not received by Qnext from your credit card issuer or bank, you agree to pay all amounts due upon demand by Qnext. Qnext reserves the right to change the fees applicable to the Premium Version and to institute new charges at any time, provided that such new fees or charges shall only apply to renewed subscriptions for such Premium Version.
11.2. It is solely your responsibility to settle any outstanding balances of your account in a timely manner and maintain updated billing information. If payment is not timely made, your subscription and/or access rights may be suspended or terminated, at Qnext’s sole discretion, without further notice to you.
11.3. Qnext may offer you a free version of the Services (“free version “). The free version is available only to individual end users for their personal, non-commercial use of the Services. If Qnext discovers that any free version subscriber is using the Services in a commercial capacity, it may at its sole election, require the subscriber to immediately upgrade to a Standard Version subscription and/or terminate such subscriber’s right to access the Services. You may terminate your subscription to the free version at any time by providing notice to Qnext in the manner specified in Section 10.2.
12. Intellectual Property Rights.
12.1. Qnext and it partners, oem’s and suppliers shall retain all title, ownership rights, and intellectual property rights in and to the Services and Software, and any copies or portions thereof. You acknowledge that the Services and Software are protected by patent, copyright and other intellectual property laws. All trademarks, service marks or other similar items appearing in the Services and Software are the property of their respective owners, including Qnext. You agree not to take any action to jeopardize, limit, or interfere in any manner with Qnext’s (or its licensors’) ownership of or rights with respect to the Services or Software. Except for the rights specifically granted to you in the Service Terms, all rights in and to the Services and Software are reserved. You will maintain and not remove or obscure any proprietary notices on the Software, and will reproduce such notices exactly on all permitted copies of the Software.
12.2. You hereby represent and warrant that you have all necessary rights in and to all data, materials, files, programs, ideas and opinions (“Content“) that you share, download, send, access, or transfer via the Services, or that you make available to your Community via the Services.
12.3. If you have designated a person as a member of your Community, you hereby authorize Qnext to give such designated person access to your Content, subject to the access parameters designated by you in your administration of your Services account.
13. Copyright Complaints. Qnext will to respond to all notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act). Qnext does not permit material infringing copyright law on its equipment or network, and reserves the right to remove from Qnext’s servers and/or prevent the transmission via the Services of any content that infringes any third party’s copyright or other intellectual property rights or otherwise violates the Service Terms.
14. Indemnity. You agree that Qnext, its oem’s and partners shall have no liability whatsoever to any third party for any use of the Services or Software by you or your Community. You agree to defend, indemnify and hold Qnext, its oem’s and partners harmless from and against any and all claims, damages, liabilities, and costs and fees (including reasonable attorneys’ fees), in connection with or arising out of your or any member of your Community’s (a) violation or breach of the Service Terms or any applicable law or regulation, or (b) violation of any rights of any third party, including without limitation, any intellectual property rights, (c) use or misuse of the Services or Software, or (d) any upload, download or dissemination of Content by means of the Services.
15. WARRANTY DISCLAIMER. THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, AND QNEXT HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. QNEXT MAKES NO WARRANTY THAT THE SERVICES OR SOFTWARE WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR OTHERWISE MEET YOUR EXPECTATIONS, OR THAT ANY DEFECTS OR ERRORS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS SPECIFIED ABOVE, SO THEY MAY NOT APPLY TO YOU.
16. LIMITATION OF LIABILITY. IN NO EVENT SHALL QNEXT OR ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS (OR ANY OF THE FOREGOING ENTITIES’ OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS) BE LIABLE FOR ANY INDIRECT DAMAGES, INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LEGAL FEES, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR SOFTWARE. IN NO EVENT WILL QNEXT’S MAXIMUM CUMULATIVE LIABILITY TO YOU EXCEED THE SERVICE FEES YOU HAVE PAID TO QNEXT. YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE OR SERVICE IS TO UNINSTALL THE SOFTWARE AND CEASE USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS SPECIFIED ABOVE, SO THEY MAY NOT APPLY TO YOU.
17. Government Use. If you are part of an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Software by the US Government shall be governed solely by the Service Terms.
18. Export Controls. You shall comply with all export laws and restrictions and regulations of the Canadian and the US Department of Commerce, the Canadian and US Department of Treasury Office of Foreign Assets Control, or other Canadian and United States or foreign agency or authority, and you shall not use the Services to export, or allow the export or re-export of Content in violation of any such restrictions, laws or regulations. You represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws.
19. Applicable Law. The laws of the province of Ontario Canada will govern the Service Terms, without reference to any conflicts of law principles. The United Nations Convention on Contracts for the Sale of Goods shall not apply to the Service Terms. The sole and exclusive jurisdiction and venue for any actions related to the Service Terms or your use of the Services shall be the province and Federal courts situated in Toronto, Canada. You hereby agree to service of process in accordance with the rules of such courts.
20.1. Entire Agreement. The Terms set forth the entire understanding and agreement between you and Qnext with respect to the subject matter hereof. If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected thereby.
20.2. Waivers. Qnext’s failure to act with respect to a breach of the Service Terms by you or others does not constitute a waiver and shall not limit Qnext’s rights with respect to such breach or any subsequent breaches.
20.3. Assignment. Your agreement with Qnext may not be assigned or transferred by you for any reason whatsoever.
20.4. Electronic Communications and Signatures. You hereby agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services or Software. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
Terms of Service – April 2015