BY ACCEPTING THIS AGREEMENT, EITHER BY REGISTERING ON QADEPT.COM OR BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR ANY OTHER DOCUMENTATION THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
This Agreement was last updated on June 28, 2016. It is effective between You and Us as of the date of Your acceptance of this Agreement.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means this Terms of service.
"Malicious Code" includes but not restricted to code, files, scripts, agents or programs intended to do harm or any unlawful activities, including, for example, viruses, worms, time bombs and Trojan horses.
"Services" means the products and services that are ordered by You or provided to You under a subscription fee or under a free trial, and made available online by Us. “Services” exclude content and third party Applications.
"User" means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
"We", "Us" or "Our" means QAdept Limited, Ireland.
"You” or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company.
If You register on Our website (qadept.com) for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST AFTER 3 MONTHS OF FREE TRIAL PERIOD EXPIRY UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR PURCHASE APPLICABLE UPGRADED SERVICES, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Provision of Purchased Services. We will (a) make the Services and content available to You pursuant to this Agreement, (b) provide applicable support for the Services to You at no additional charge, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
Protection of Your data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the purchased Services and prevent or address service or technical problems, (b) as compelled by law, or (c) as You expressly permit in writing.
Subscriptions. Unless otherwise provided, (a) Services and access to content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
Usage Limits. Services and content are subject to usage limits, including, for example, the quantities. Unless otherwise specified, (a) a quantity refers to Users, and the Service or content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except otherwise provided for, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will subscribe for additional quantities of the applicable Services or content promptly upon Our request, and/or pay any invoice for excess usage.
Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and content, and notify Us promptly of any such unauthorized access or use, (d) use Services and content only in accordance with this Agreement and applicable laws and government regulations. You will not (a) make any Service or content available to, or use any Service or content for the benefit of, anyone other than You or Users, unless expressly permitted by us, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or content, or include any Service or content in a service bureau or outsourcing offering, (c) use our Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use our Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy content except as permitted herein, (j) frame or mirror any part of any Service or content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted under this Agreement, (k) access any Service or content in order to build a competitive product or service or to benchmark with any product or service, or (l) reverse engineer any Service. Any use of the Services in breach of this Agreement, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
As a part of our Service offering, We or third parties may make available third-party products or services. Any acquisition by You of such products or services, and any exchange of data between You and any such third party provider, product or service is solely between You and the applicable provider. We do not warrant or support third party Applications or products or services, whether or not they are designated by Us as “certified” or otherwise.
Fees. You will pay all fees specified upon registration other than for free trial. Except as otherwise specified herein or in plan, (i) fees are based on Services and content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either monthly or annually or in accordance with any different billing frequency agreed upon. If You specify that payment will be by a method other than a credit card, We will invoice You in advance. Unless otherwise agreed, invoiced charges are payable in advance or immediately upon receipt of invoice. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
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, and/or (b) We may condition future subscription renewals on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
Suspension of Service. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, suspend Our services to You until such amounts are paid in full.
Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder whether leviable on You or Us. 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. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors and content Providers reserve all of Our/their right, title and interest in and to the Services and content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
Access to and Use of content. You have the right to access and use applicable content subject to the terms of this Agreement.
License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.
Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and content; and Confidential Information of each party includes the terms and conditions of this Agreement (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable details to a subcontractor or third party Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein. We may use Your brand name or logo on our customer list and at other places on our website (including but not limited to qadept.com)
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE DO NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or content in violation of the Agreement and You will indemnify Us from any damages, attorney fees and any costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, and (b) give You all reasonable assistance, at Your expense.
IN NO EVENT SHALL OUR AGGREGATE LIABILITY TOGETHER WITH ALL OF OUR AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED UNITED STATES DOLLAR 1 (ONE) FOR THE SERVICES GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT WILL WE OR OUR AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
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.
Term of Purchased Subscriptions. The term of each subscription shall be as per the subscription plan selected by you. Except as otherwise specified, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless You give Us notice of non-renewal at least 30 days before the end of the relevant subscription term.
Termination. This Agreement shall stand terminated at the end of the subscription period unless the Services are renewed. We may terminate Our services or access to our website at any time without notice (i) if You materially breach any provisions of this Agreement (ii) if You cease to do business, or otherwise terminate your business operations without a successor; or (iii) if You are subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iv) if We are required to do so by Law. If You wish to terminate this Agreement, You may simply stop using Our services or stop accessing Our website.
Refund or Payment upon Termination. Fees once paid under this Agreement shall not be refundable to You under any circumstances. You will not be entitled to any payment upon termination of this Agreement either by You or by Us.
Surviving Provisions. The sections titled "Fees and Payment", "Proprietary Rights and Licenses", "Confidentiality", "Disclaimers", "Mutual Indemnification", "Limitation of Liability", "Refund or Payment upon Termination", "Customer Data Portability and Deletion", "Removal of content and Non-SFDC Applications", "Surviving Provisions" and "General Provisions" will survive any termination or expiration of this Agreement.
Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.
Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation is void.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.