License Agreement Terms and Conditions
This is an agreement (the "Agreement") between you (the "Licensee" or "you") and Qlumi LLC (the "Licensor" or "we" or "us"), the maker and owner of Qlumi (the "Software") the Application (as defined below).
THIS IS A CONTRACT AND YOU WILL BE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE TO INSTALL OR UPDATE. IF YOU DECLINE TO ACCEPT, YOU WILL NOT BE ABLE TO USE, INSTALL OR OPERATE THE APPLICATION. PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE PROCEEDING WITH ACCEPTING OR DECLINING, AND WITH INSTALLATION OF THE APPLICATION
Please carefully read the following terms and conditions before proceeding with the installation of the product. Licensor calls your attention specifically to Term # 9 THIRD PARTY INFORMATION and #10 LICENSEE'S INDEMNIFICATION. ANY USE OF OR ACCESS TO OUR WEB SITE ALSO IS SUBJECT TO THIS AGREEMENT, AND BY VIRTUE OF ACCESSING OUR WEB SITE YOU ARE BOUND BY AND SUBJECT TO THIS AGREEMENT. If you agree to the terms of the Agreement license AND DESIRE TO DOWNLOAD AND/OR USE THE APPLICATION, indicate your agreement by creating an Event in the Event Dashboard at our website (to be defined in this Agreement as "qlumi.com"). If you do not agree to the terms of the License AGREEMENT, do not create an Event in the Event Dashboard at our website.
1. GRANT OF LICENSE; USE OF APPLICATION.
a. This Agreement grants you by us a Nonexclusive, non-transferable, non-sublicensable, limited, revocable license (the "License") to use the Qlumi web application made available by us (the "Application"). Any information made available by us through the Licensorâ€™s web site is deemed included in the definition of Application a copy of the Software in binary executable form. Any use of the Application must be in accordance with any rules, standards or specifications provided by us from time to time at our web site.
b. The Application is provided solely as a license and is not being sold or otherwise transferred to you. Other than the License, you are not granted any right, title or interest in the Application or any of the Licensorâ€™s intellectual properties.
c. The Application may be used solely for its intended purpose , and you may not use the Application for any commercial purpose (including without limitation for any purpose to sell goods or services or otherwise for profit) for yourself or for any other person or entity. you may not use the application inconsistent with any applicable federal, state, foreign or local law, rule or regulation.
d. You may not take any action to interfere with, interrupt or limit the use or functionality of the Application and may not use or send any computer virus, "Trojan horse," spider, worm, drop dead device, malicious logic, "time bomb," trap or back door, other automatic device, or manual process to monitor, "mine," or copy the web pages for the Application or the content contained therein, and may not otherwise upload, use or otherwise transmit any code, content or other files that contain a computer virus or other similar component.
e. You are solely responsible for any activity under your username. Licensor will not be liable for damages or losses from an unauthorized use of your License.
f. You may not modify, reverse engineer, or decompile the Application, create derivative works thereon or therefrom, attempt to derive source code, algorithms, structure or organization of the Application, or use the Application to create any material that replicates or utilizes the same or substantially similar functions of the Application.
g. We reserve the right to monitor your use of the Application to ensure compliance with these Terms and Conditions.
Upon registering for the right to access and use the Application pursuant to the License ("Registration"), Licensee shall provide true, accurate and complete information in response to the registration questions (the "Registration Data"). You may update, and agree to promptly update if it is not wholly accurate or up-to-day, all Registration Data, which is part of this Agreement.
3. ACCEPTANCE OF AGREEMENT; PRIVACY PRACTICES.
a. Your continued use of the Application after we post any amendment to this Agreement constitutes your agreement thereto. If you do not agree with any such amendment you must uninstall and cease use of the Application.
a. You are solely responsible for all information and content that you publish and display through use of the Application ("Registrant Content"). All Registrant Content that you publish, display or distribute must comply with this Agreement and you are solely responsible and liable for all Registrant Content and the consequences of the publication, display or distribution thereof. Without limiting any other terms in this Agreement, you must first obtain any rights necessary (including copyright rights) to publish, display or distribute any Registrant Content, and, further, you agree to not publish, display or distribute any Registrant Content that (including without limitation, you may not provide a link to a third-party website that) (i) is or that contains material that is obscene, indecent, pornographic, threatening, inaccurate, defamatory or otherwise is objectionable or could give rise to either civil or criminal liability, (ii) contains the social security number or credit card or bank account information of a third party, or (iii) infringes or could infringe on any copyright, trademark, publicity, privacy or other intellectual property right of a third party, unless you have the written consent of such third party to use the Registrant Content in the manner in which you are posting, publishing, displaying or distributing it.
b. You hereby grant to Licensor an irrevocable, perpetual, non-exclusive, royalty-free, fully sublicensable, fully paid up, worldwide license to use, copy, perform, display and distribute all Registrant Content through the Application.
5. OPERATION OF THE SERVICE.
We reserve the right, in our sole discretion, to (i) modify or cease operating the Application and/or any portion of the Application at any time, and/or (ii) utilize a third party to host the Application (including Registrant Content) and/or to provide or assist in providing other Service.
Licensee acknowledges and agrees that all right, title and interest in and to all trademark, service mark, copyright, patent, trade secret, and all other intellectual property rights, foreign and domestic, of whatever nature in and to the Application, including without limitation in and to all text, video, graphics, photographs, sounds and the configuration of the Application and our web site ("Licensor Content") are and shall remain the property of the Licensor, and nothing in this Agreement should be construed as transferring any aspects of those rights to the Licensee or any third party. Without limitation to the foregoing, all trademarks and service marks of Licensor or any third party may not be copied, duplicated or used without the prior written consent of the owner. Licensor represents that it is the owner of the Software and that the Licensor has the sole right to modify the Software and to grant Licensee a license for its use. Licensee acknowledges that the Software in source code form remains a confidential trade secret of Licensor. The Application Software and accompanying materials are protected by, among other laws, rules and regulations, copyright laws of the United States and International Treaty provisions.
7. DISCLAIMER OF WARRANTY.
LICENSOR FURNISHES THE SOFTWARE THE APPLICATION AND ALL LICENSOR CONTENT ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, LICENSOR PROVIDES THE SOFTWARE WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF QUALITY, AND WARRANTY OF ACCURACY, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE. THERE IS NO WARRANTY THAT THE SUBJECT OF THIS TRANSACTION WILL FULFILL ANY OF THE LICENSEE'S PARTICULAR NEEDS. THE SOFTWARE IS PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY AND EFFORT IS WITH THE USER. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. YOU ALSO ASSUME RESPONSIBILITY FOR THE SELECTION OF THIS SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM THE PROGRAMS. THE LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS NOR THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THE APPLICATION AND LICENSOR CONTENT MAY CONTAIN BUGS, ERRORS OR OTHER LIMITATIONS. NO COMMUNICATIONS, ORAL OR WRITTEN, FROM US (INCLUDING ANY DEALER, AGENT, OR EMPLOYEE) OR BY OTHER MEANS SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTY NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. THE LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATION, EXTENSION, OR ADDITION TO THIS WARRANTY DISCLAIMER. YOU AGREE THAT ANY FAILURE OF THE APPLICATION TO PERFORM SHALL NOT BE CONSIDERED A FAILURE OF ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER RIGHTS THAT VARY BY JURISDICTION.
8. LIMITATION OF LIABILITY AND REMEDIES.
TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE SHALL THE LICENSOR OR ITS OWNERS, OFFICERS, AGENTS OR REPRESENTATIVES ("LICENSOR PARTIES") SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR OR AS A RESULT OF YOUR USE OR INABILITY TO USE THE APPLICATION OR FOR CONDUCT OF A THIRD PARTY SERVICE PROVIDER. WITHOUT LIMITATION, IN NO EVENT SHALL LICENSOR OR ANY OTHER LICENSOR PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER MALFUNCTION, LOSS OF PROFITS, PERSONAL INJURY, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY AND ALL OTHER DAMAGES OR LOSSES, WHETHER BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), ARISING OUT OF THE USE OF THE SOFTWARE, EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, OR BY ANY CLAIM BY ANY OTHER PARTY. LICENSOR'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE THE AMOUNT LICENSOR RECEIVED FROM THE LICENSEE FOR THIS LICENSE TO USE A SINGLE COPY OF THE SOFTWARE. WITHOUT LIMITATION TO THE FOREGOING, NEITHER LICENSOR OR ANY OTHER LICENSOR PARTY IS LIABLE FOR (I) ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING THIRD PARTY SERVICE PROVIDERS, OR (II) ANY VIRUS OR OTHER DISABLING FEATURE OR ACTION AFFECTING YOUR USE OR ACCESS TO THE APPLICATION OR (III) ANY UNAUTHORIZED USE OF YOUR REGISTRATION. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. THIRD PARTY INFORMATION.
Information displayed in the Software the Application, and elements thereof, is generated from or synchronized with third-party websites and servers ("Third Party Service Providers"). In addition, as part of your Registrant Content, you may include links to third-party websites, and there may be advertisements, information or other content of a third party (including links away from our web site and/or Application) to third party web sites, all of which also would be owned by Third Party Service Provider. Licensee agrees that unless set forth in notice provided by Licensor to you, Licensor is not affiliated with any Third Party Service Provider and does not endorse or provide any representation or warranty as to the Third Party Service Provider or any goods or services provided by them. In no event shall Licensor be liable for faulty, partial, incorrect, or erroneous information of a Third Party Service Provider displayed in Qlumi, including but not limited to telephone numbers, addresses, event dates, navigational routes to locations, on-sale items, prices for items at locations, and hours of operation. All content accessed through the Software Application is the property of the applicable content owner and may be protected by applicable copyright law. This License Agreement gives you no ownership rights to such content.
10. LICENSEE'S INDEMNIFICATION.
Licensee expressly agrees to indemnify, defend and save harmless Licensor and the other Licensor Parties, and upon Licensorâ€™s request, defend the Licensor Parties, from and against any liability, loss, or claim, amounts in settlement, cost or Expense resulting from the use of the Software, including attorney's fees and costs of defense, that Licensor or another Licensor Party may incur in connection with or as a result of your use or misuse of the Application or any services provided by us, violation of this Agreement or any acts or omissions of you or your agents or representatives. The foregoing indemnification obligations will survive termination of this Agreement and/or your Registration.
You understand that we may update or revise (including without limitation adding or removing features, bug-fixes, or patches) the Application from time to time, in our sole discretion. By using the Application and/or exercising your rights under the Agreement, you agree to accept any and all updates or revisions to the Application and that we may update the Application with or without notifying you.
12. COMMUNICATIONS FROM LICENSOR.
You acknowledge and agree that, following Registration, you may receive communications from Licensor (including by email) including notices regarding the Application and promotional material regarding products or services of Licensor. If you would like, at any time, to unsubscribe to our email list, please click the "Unsubscribe" link at the bottom of the email communication and you will be removed from that particular mailing list.
13. COPYRIGHT AGENT.
We respect the intellectual property rights of you and others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with written notice with the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the copyright interest owner;
(b) a description of the copyrighted work that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located on the Service;
(d) your address, telephone number, and e-mail address;
(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
and (f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Our Copyright Agent for Notice of claims of copyright infringement only is:
300 Council Rock Avenue, Rochester, NY 14610
By phone: (585) 236-4121
By e-mail: email@example.com
14. TEXT MESSAGE CONSENT AND ACKNOWLEDGEMENT.
The Software utilizes text messages also known as short message service ("SMS") as well as notifications within the Software to send out event invitations for the events you create. You agree that you have received explicit consent from each invitation recipient (the "Recipient") to receive SMS messages from our Software. You agree that you will exclude Recipients from whom you have not received this consent. You agree to comply with The Telephone Consumer Protection Act, all its inherent regulations, and with all state and country (including if you are not in the United States) telephone and SMS laws as well. You can discontinue receiving SMS from the Software at your discretion. Our Software is not able to send SMS to all wireless carriers. Message and data rates may apply to Recipients who receive SMS through our Software. Licensee acknowledges that message and data rates may apply when Licensee is the Recipient of SMS from other Software users' event invitations.
A. You may terminate your License by emailing such request to us at firstname.lastname@example.org, in which case your License will terminate effective immediately upon our receipt of the request, subject to the other provisions in this Agreement.
b. We may terminate your License at any time for any reason, with or without cause in our sole discretion, by emailing you at the email address that you have provided in your Registration Data, in which case your License will terminate immediately upon our sending the email to you. It shall be your responsibility to ensure that your Registration Data is current with respect to your email address(es) for communications.
c. Upon a termination of your License by either you or us, your right to access and use the Application will terminate immediately. Notwithstanding a termination, Sections 1(d), 1(e), 1(f), 3, 4(b), 6-13 and 15-21 shall remain in full force and effect.
16. MISCELLANEOUSCOMPLETE AGREEMENT; PARTIES; ASSIGNMENT.
This Agreement represents the complete agreement between you and us, and supersedes any other agreements and understandings, with respect to its subject matter concerning this license, superseding all prior or contemporaneous understandings, and may be amended only by a writing executed by both parties. YOUR USE OF THIS SOFTWARE IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS IN THIS AGREEMENT. This Agreement shall inure to the benefit of Licensorâ€™s successors and assigns, and Licensor may assign or delegate this Agreement, in whole or in part, at any time without consent. Your Registration and the License granted to you hereunder (and your right to use the Application) are not individually or collectively assignable or transferable in any case, and only may be used by you.
The waiver or failure of Licensor to exercise in any respect any right provided in this agreement shall not be considered a waiver of any further right. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act. This Agreement shall be governed by the laws of the United States and the state of New York, except for conflict of laws provisions. In the event of a dispute arising from the use of the Software, you agree to submit to the jurisdiction and venue of Monroe County, Rochester, New York.
If the scope of any of the provisions of this Agreement is too broad in any respect whatsoever to permit enforcement to its full extent, then such provisions shall be enforced to the maximum extent permitted by law, and the parties to this Agreement consent and agree that such scope may be judicially modified accordingly and that the whole of such provisions of this Agreement shall not thereby fail, but that the scope of such provisions shall be curtailed only to the extent necessary to conform to law.
If any provision or any portion of any provision of this Agreement is held to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining provisions hereof.
19. CHOICE OF LAW; VENUE.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to any conflicts of law principles. Any cause of action by you with respect to the Application or any services provided by us or otherwise in connection with this Agreement (i) must be instituted within one (1) year after the cause of action arose or be forever waived and barred, and shall be brought solely in a State or Federal court located in Monroe County, State of New York. You expressly submit to the exclusive jurisdiction of such courts and consent to extraterritorial service of process, and waiver any objection of forum non conveniens.
In addition to any other remedies set forth in this Agreement or otherwise available to Licensor at law or in equity, all of which shall be cumulative, Licensor shall have to right to obtain (without need to post a bond) a temporary or permanent injunction or other equitable relief to prevent a breach or threatened breach of this Agreement.
21. FORCE MAJEURE.
Without limitation to the other limitations and disclaimer of warranties in this Agreement, Licensor shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Licensor, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Licensorâ€™s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
22. NOTICES TO LICENSOR.
Unless otherwise expressly set forth herein, you may notify us by email at email@example.com, or by postal mail at 300 Council Rock Avenue, Rochester, NY 14610, Attn: Qlumi Administrator.
Please indicate your acceptance or declination of this Agreement by clicking on the appropriate box below.