YOUR USE OF THE PROPRIETARY QTRACA SERVICE OFFERED AT QTRACA.COM (THE “SERVICE”), IS SUBJECT TO THESE TERMS OF SERVICE. IN ORDER TO USE THE SERVICE, YOU MUST AGREE TO BE BOUND BY THESE TERMS OF SERVICE (“AGREEMENT”) WITH QTRACA.COM (“QTRACA LIMITED”). IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.
By signing up for the Service on behalf of a Client, you confirm that (a) you are duly authorized to represent the entity, (b) you accept the terms of this Agreement on behalf of such entity, and (c) any references to “you” in this Agreement refer to such entity and all of its employees, consultants and agents. You are responsible for all activity on the Service that occurs under your account.
- The Service
1.1 The QTRACA Service may include additional services that you subscribe to receive specifically from or through QTRACA. Some of these services have specific additional terms that apply to your use of those additional services (the “Additional Terms”), and those Additional Terms become part of this Agreement. In the event an Additional Term directly conflicts with any term in this Agreement, the Additional Term will apply to your use of the additional service instead of the term contained in this Agreement.
- Term and Termination
2.1 This Agreement will remain in effect as long as you have an active subscription for the Service (the “Term”). If you elect to use the Service for a free trial period, and do not purchase a subscription before the end of such period, this Agreement will expire at the end of the free trial period.
2.2 Subscriptions purchased by you commence on the start date specified when you complete the initial payment process and continue for the subscription term selected at the time of payment. If you add an additional subscription for a new QTRACA service or module at a later date, the new service will commence on the start date specified at the time you added the new service and continue for the subscription term selected at that time. Subscriptions automatically renew, as described in Section 5.1.
2.3 You are solely responsible for the proper cancellation of your subscription. You may cancel your subscription at any time by emailing firstname.lastname@example.org
2.4 QTRACA may suspend your access to the Service and terminate this Agreement and your use of the Service at any time in the event you materially breach this Agreement (including failure to pay, which may occur in the event when your credit card cannot be charged) and do not cure such breach within 30 days of QTRACA providing you with written notice (including notice by email), or earlier if a specific subscription provides otherwise. Notwithstanding the foregoing, QTRACA may immediately suspend or terminate your access to the Service without liability if you are in violation of Sections 4.1, 4.5 or 13 of this Agreement, as determined by QTRACA in its sole discretion. QTRACA may also downgrade, suspend or terminate your access to the Service without liability, after providing you with 30 days’ advance written notice, if (a) you fail to affirmatively agree to material modifications of this Agreement pursuant to Section 3.1 below, or (b) you do not log in to or otherwise use the Service for a period of 180 days or more if you have a paid account and for a period of 60 days or more if you have a free account. For instances other than non-payment or violation of Section 4.1, in the event you cancel one or more of your subscriptions or this Agreement is terminated by QTRACA or you, QTRACA will refund to you any prepaid fees covering any period of the Term remaining after the date of termination for all such subscriptions, except that no refunds will be granted for the then-current month. Notice via email from QTRACA will be sent to you at the email address you have provided to us. QTRACA reserves the right to manage its client profile, the risks it will assume, the industries it will serve, and the locations where it will do business, including choosing to not provide services to certain groups, parties, industries, or companies in certain countries, in its sole discretion.
2.5 In the event your subscription is terminated, other than in instances where it is terminated by QTRACA for your nonpayment or violation of Sections 4.1 or 13, you will continue to have the ability to download the information provided, inputted or uploaded to your databases in the QTRACA Service by you or on your behalf (“Data”) for 30 days after the effective date of expiration or termination of your subscription. After such 30-day period or if your subscription is terminated due to your nonpayment or violation of Section 4.1, QTRACA shall have no obligation to maintain any Data and shall thereafter, unless legally prohibited to do so, delete all of your Data contained in the QTRACA Service.
- Modification of Service or this Agreement
3.1 The Service may be made available in free or paid versions at different levels. Not all features and functionality of the Service may be available in each version or level. QTRACA reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the Service on a temporary or permanent basis, without liability to you or any third party.
3.2 QTRACA may modify or update this Agreement at any time. In the event QTRACA determines it is necessary to make a material modification to this Agreement, you will be notified of such change and asked to affirmatively agree to such modified version of the Agreement. Note, however, that your use of the Service after modifications to the Agreement become effective constitutes your binding acceptance of such changes. You may review the most current version of this Agreement at: https://www.qtraca.com/terms.
3.3 If you are dissatisfied with the terms of this Agreement or any modifications to this Agreement or the Service, you agree that your sole and exclusive remedy is to terminate your subscription and discontinue any use of the Service.
- Usage Rights; Restrictions; Support
4.1 During the Term, QTRACA grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the Service and all modifications and/or enhancements to any of the foregoing (collectively, the “Software”) via a web browser or other device owned or controlled by you for your internal business use. Nothing in this Agreement obligates QTRACA to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the Service only in compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). You shall not, and shall not agree to, and shall not authorize, encourage or permit any third party to:
- use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, fraudulent, obscene, threatening, abusive, hateful, contains viruses, or is otherwise objectionable as reasonably determined by QTRACA;
- use the Service for any fraudulent or inappropriate purpose, or in a manner for which it is not intended to be used (as determined by QTRACA in its sole discretion);
- attempt to decipher, decompile, delete, alter or reverse engineer any of the Software;
- duplicate, make derivative works of, reproduce or exploit any part of the Service without the express written permission of QTRACA;
- use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service other than copying or exporting of the Data as contemplated in the documentation; or
- rent, lease, distribute, or resell the Software, or access or use the Software or Services for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the Service.
4.2 QTRACA shall: (i) provide you with basic support in connection with your use of the Service at no additional charge, and with upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (which QTRACA shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday NZST), or (b) any unavailability caused by circumstances beyond QTRACA’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Service only in accordance with Applicable Law.
4.3 QTRACA shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the Service, and the security of your Data. QTRACA shall not (a) disclose your Data except as compelled by Applicable Law or as you expressly authorize in writing, or (b) access your Data except to provide the Service and prevent or address service or technical problems, or at your express request in connection with customer support matters. In the event we are compelled by Applicable Law to disclose your Data, we will provide you with notice thereof, (in advance, if possible) if permitted by Applicable Law.
4.4 You are solely responsible for your Data, and all uses of your Data that occur through your account.
4.5 If you integrate with QTRACA using our API, you must use efficient programming, which will not cause an excessive number of requests to be made in too short a period of time, as-determined solely by QTRACA. If this occurs, QTRACA reserves the right to throttle your API connections, or suspend or terminate your QTRACA account.
- Payment Terms
5.1 Your subscription to the Service renews automatically for the same term selected upon initial payment (e.g., month-to-month, annual, etc.). You may change your subscription term at any time by contacting QTRACA using one of the methods set forth in the Contact Information section below. If you are paying by credit card, your credit card will be charged once a month for monthly subscriptions and at the time your annual subscription payment has been depleted based on your number of employees and subscription to the Service. QTRACA will email you a receipt when your card has been charged. If your card cannot be charged, QTRACA will notify you and you will need to update your payment information. In the event you do not update your payment information within 22 days of QTRACA’s notice, your access to the Service may be suspended and you will need to update your card information in order to resume use of the Service. There will be no refunds or credits for partial months of service.
5.2 Annual subscription pricing requires a one-year minimum commitment. If you cancel your full subscription, or your subscription is suspended for nonpayment, before the end of the one-year commitment period, you will no longer qualify for annual subscription pricing and you will be charged the difference between the monthly and annual commitment pricing for the number of months your subscription was active. If you cancel only a portion of your subscription, you may still qualify for annual pricing and the prepaid amounts attributed to that portion will be used against other services to which you have subscribed.
5.3 All fees are exclusive of all taxes or duties imposed by governing authorities. Other than sales taxes which QTRACA may be required to collect from you and remit to appropriate taxing authorities, you alone are responsible for payment of all such taxes or duties.
5.4 QTRACA may at any time, upon notice of at least 90 days, or a longer period if required by Applicable Law, change the price of your subscription or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your annual subscription period will come into effect for any subsequent annual subscription periods and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your subscription and stop using the Service prior to the commencement of the renewal subscription period for which the price change applies.
- Intellectual Property Rights
6.1 As between the parties, QTRACA owns and shall retain all right, title and interest in and to (a) the Software and the Service, including all intellectual property rights, and (b) transactional and performance data related to your use of the Service. QTRACA may collect, use and disclose all such transactional and performance data for its business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you or your employees.
6.2 You retain all right, title and ownership interest in and to your Data. QTRACA has no right, title or interest in any personally identifiable information contained in or related to your Data.
6.3 You have no obligation to give QTRACA any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service. To the extent you provide any Feedback to QTRACA, QTRACA may use and include any such Feedback to improve the Service or for any other purpose. Accordingly, if you provide Feedback, you agree that QTRACA shall own all such Feedback and QTRACA and its affiliates, licensees, clients, partners, third-party providers and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Service or other related technologies, and you hereby assign all rights in such Feedback to QTRACA.
6.4 From time to time during the Term, QTRACA may develop, author or prepare custom documents, designs, computer programs, computer documentation and other tangible materials (“Deliverables”) for you per agreement between you and QTRACA. QTRACA shall own and retain all right, title and interest in and to such Deliverables and hereby grants to you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license for you to use such Deliverables for your internal use only during the Term. QTRACA may reuse any Deliverables, provided that such use does not reveal your identity or your confidential information.
7.1 Unless otherwise agreed to by you and QTRACA, during the Term, QTRACA may disclose your name as a customer of QTRACA and/or subscriber to the Service, and you hereby grant QTRACA the right to display your name, company, and logo in QTRACA’s marketing materials and on QTRACA’s public website, in each case in accordance with any branding guidelines you may provide to QTRACA.
- User Content
8.1 Certain features of the Site may enable users to submit, upload, post, share, or display (hereinafter, “post”) comments or content, as well as to interact with others through user comment areas, message boards, direct messages, QTRACA’s blog, and similar user-to-user areas, as applicable (such comments and content shall be collectively referred to as “User Content”). User Content includes any comments or reviews you provide to QTRACA about the Service but excludes all Data.
8.2 You hereby grant to QTRACA an irrevocable, perpetual, non-exclusive, transferable, sublicensable, assignable, royalty-free, worldwide right and license to use, reproduce, display, perform, distribute, and prepare derivative works of any User Content you post on or through the Service for any purpose and in all forms and all media, whether now known or that become known in the future, and you waive any and all claims that you may have now or may hereafter have in any jurisdiction to any moral rights and all rights of “droit moral” in your User Content. If you post User Content, you represent and warrant to QTRACA that you own or control all rights in and to such User Content and have the right to grant the rights above to QTRACA.
- Warranties and Limitation of Liability
9.1 QTRACA represents, warrants, and covenants as follows: (a) the Service will perform substantially in accordance with the specifications generally provided by QTRACA in connection with the Service (“Documentation”); and (b) any professional services performed for you by QTRACA will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, QTRACA HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. QTRACA DOES NOT WARRANT THAT OPERATION OF THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED.
9.3 EXCEPT FOR (I) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (III) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (IV) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, AND (B) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO THIS AGREEMENT IS LIMITED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO THE FEES COLLECTED BY QTRACA FROM YOU PURSUANT TO THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE EVENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
- Security Breach.
10.1 External Breach: In the event of a security breach, as defined by Applicable Law, by anyone other than your employee, contractor or agent, upon discovery of such breach, QTRACA will: (a) initiate remedial actions that are in compliance with Applicable Law and consistent with industry standards; and (b) notify you of the security breach, its nature and scope, the remedial actions QTRACA will undertake, and the timeline within which QTRACA expects to remedy the breach. You will be responsible for fulfilling your obligations under Applicable Law.
10.2 Internal Breach: In the event of a security breach, as defined by Applicable Law, by your employee, contractor or agent, you shall have sole responsibility for initiating remedial actions and you shall notify QTRACA immediately of the breach and steps you will take to remedy the breach. In our sole discretion, we may take any action, including suspension of your access to the Service, to prevent harm to you, us, the Service, or other third parties. You waive any right to make a claim against us for losses you incur that may result from our actions.
11.1 You agree to indemnify, defend and hold harmless QTRACA, and its subsidiaries, affiliates, officers, directors, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or in connection with (a) your use of the Software and/or Service in violation of this Agreement, or (b) any employment decision or action you take due to information available through or your use of the Service.
11.2 QTRACA agrees to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or in connection with an allegation that your use of the Software and/or Service in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall QTRACA have any obligations or liability arising from: (a) use of the Software and/or Service in a modified form or in combination with materials or software not furnished by QTRACA, and (b) any User Content, information or Data provided by you, your end users, or other third parties.
11.3 A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnifying party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim, grant such sole control, and/or provide such cooperation, information and assistance, shall not relieve the indemnifying party of its obligations under this Article 11, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
- Governing Law
12.1 This Agreement shall be governed by and construed in accordance with the substantive laws of New Zealand, without reference to conflict of laws principles. Any legal action or proceeding with respect to this Agreement must be brought in the courts of New Zealand. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
- Compliance with Laws; Disclaimers
13.1 Each Party shall comply with all Applicable Laws in connection with its own activities under this Agreement. The Service can be configured and used in ways that do not comply with Applicable Laws and it is your sole responsibility to monitor your employees’ use and your use of the Service to ensure that such use complies with and is in accordance with Applicable Law. In no event shall QTRACA be responsible or liable for your failure to comply with Applicable Law in connection with your use of the Service.
13.2 QTRACA does not provide its customers with legal advice regarding compliance, data privacy or other relevant Applicable Laws in the jurisdictions in which you use the Service, and any statements made by QTRACA to you shall not constitute legal advice.
13.3 You acknowledge that QTRACA exercises no control over your specific human resource practices implemented using the Service or your decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee or authorized user of the Service. You further agree and acknowledge that QTRACA does not have a direct relationship with your employees and that you are responsible for all contact, questions, Data updates and collection, with your employees. In addition, you are responsible for the privacy (including adopting and posting your own privacy policies governing your treatment of your employees’ Data), collection, use, retention and processing of your employees’ Data, and providing any and all notices and information to your employees regarding the foregoing, in compliance with all Applicable Laws. QTRACA hereby disclaims all liability arising from your decisions and from harmful data or code uploaded to the Service by you and/or your employees, contractors or agents.
13.4 You agree that you will not, directly or indirectly, ship, transfer, transmit, export or re-export, or knowingly permit any of the foregoing with respect to the Service or Software, or any technical information about the Service or Software, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States Government approval, unless the appropriate export license or approval has been obtained.
13.5 You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
- iOS Version
14.1 If you use the iOS version of the Service, you acknowledge the statements set forth in this Section. This Agreement is between you and QTRACA only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the functionality or content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty and if you purchased a subscription to the Service through Apple, then you may notify Apple and Apple will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by Applicable Law, Apple has no other warranty obligation whatsoever with respect to the Service. As between Apple and QTRACA, QTRACA is responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Service to conform to any warranty, subject to the terms of this Agreement. Apple is not responsible for addressing any claims brought by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement.
- Additional Services
- General Provisions
16.1 Entire Agreement. This Agreement encompasses the entire agreement between you and QTRACA with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. No purchase order or other form submitted by you will modify, supersede, add to or in any way vary the terms of this Agreement.
16.2 No Waiver. The failure of QTRACA to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
16.3 Severability. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall be interpreted so as to reasonably effectuate the intention of the parties and shall not affect the validity and enforceability of any remaining provisions.
16.4 Survival. The provisions of this Agreement that should, by their nature survive termination and/or expiration, shall and do survive such termination and/or expiration.
16.5 Assignment. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without QTRACA’s prior written consent, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. Any assignment in violation of the foregoing will be null and void.
16.6 No Legal Advice; Reliance. No part of this Agreement is intended or shall be construed as legal advice. QTRACA shall not be liable for an errors or omissions in the content of this Agreement or for any actions taken in reliance thereon.
- Contact Information
17.1 If you have any questions about the Service or this Agreement, you may email us at email@example.com