Effective: May 1, 2015
BY ACCESSING OR USING ANY PART OF THE WEBSITE OR THE SERVICES EITHER ONLINE, VIA MOBILE APP, OR IN ANY OTHER MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. QMAXX RESERVES THE RIGHT TO MAKE CHANGES TO THIS AGREEMENT AT ANY TIME. YOUR CONTINUED USE OF THE WEBSITE AND/OR SERVICES CONSTITUTES ACCEPTANCE OF BOTH THIS AGREEMENT AND ANY NEW ADDITIONS TO THIS AGREEMENT THAT MAY BE POSTED ON THE WEBSITE AT ANY TIME IN THE FUTURE.
1. Your use of the Website.
a. Eligibility. Services may only be used by individuals who can form legally binding contracts under applicable law.
b. User Registration. QMaxx will be creating the ability to create a registered account on the Website. To become a registered user, you must create an account with QMaxx through the online registration process on the Website. To create the account, you must provide QMaxx with accurate and complete registration information, as prompted in the registration form. If you fail to provide or update this information or misuse your account, QMaxx may terminate your right to use the Website immediately and without warning.
c. Passwords. You will be responsible for all uses of your password and account, including, without limitation, any use by any unauthorized third party. You must notify QMaxx immediately if you believe your password or account has been obtained, or may be accessed or used by, any unauthorized party.
2. Your Content.
a. License. By posting, storing or transmitting any content on or to the Website, you hereby: (i) grant QMaxx, and represent and warrant that you have the right to grant, a perpetual, worldwide, non-exclusive, royalty-free, fully paid up, transferable, sublicensable, right and license to use, copy, display, perform, create derivative works from, distribute, have distributed, transmit and sublicense such content in any form, in all media now known or hereinafter created, anywhere in the world, for any purpose, commercial, advertising, or otherwise, and (ii) agree that the content is subject to being changed, rejected, or deleted without notice or explanation to you.
b. QMaxx’s Right to Use Your Name. If you provide to QMaxx directly, or post on the pages of the Website, any comments, ideas, or suggestions that are accompanied by your name, QMaxx may use your comments, ideas, suggestions, and your name, for marketing purposes without compensation or acknowledgement of any kind.
c. Objectionable Content. You are solely responsible for your interactions with other users of the Website and any content that you post. QMaxx is not and will not be liable for any damage or harm resulting from any of the Website users’ content or your interactions with other users of the Website. QMaxx reserves the right, but has no obligation, to monitor interactions between you and other users of the Website and to take any other action to restrict access to or the availability of any material QMaxx or another user of the Website may consider to be obscene, lewd, lascivious, violent, harassing, bullying, defamatory, infringing, abusive, inflammatory, vulgar, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable (including, without limitation, because it violates this Agreement).
d. Prohibited Content. You may not post, submit or transmit any content that: (i) is libelous, defamatory or slanderous; (ii) advocates the violent overthrow of the government of the United States; (iii) incites, encourages or threatens immediate physical harm against another; (iv) presents an immediate and genuine danger to another person or entity; or (v) violates any applicable law, regulation, or rule.
3. User Conduct.
In your use of the Website and the Services, you may not:
a. Infringe any copyright, trademark, patent, trade secret, right of publicity, or other intellectual property rights of any individual, or upload, post, transmit, share, store or otherwise disclose publicly on the Website any private information of any third party or any information that would encourage, abet or provide instructions for any unlawful activity;
b. Disrupt or interfere with the security or use of the Website or the Services;
c. Interfere with or damage the Website or Service by any means including for example the use of viruses, bots, Trojan horses, harmful code, denial of service attacks or other technologies;
d. Attempt to impersonate another person or entity, misrepresent your affiliation with a person or entity, including but not limited to QMaxx, federal, state, or municipal government, or a political candidate; or create or use a false identity;
e. Use or attempt to use another user’s account;
f. Attempt to obtain unauthorized access to any restricted portion of the Website;
g. Collect, in any manner, information about other users without their express consent or other information relating to the Website or the Services;
h. Advertise, offer to sell, or sell any goods or services without the express consent of QMaxx which will be codified in other licenses;
i. Upload, post, create links, transmit, share, store or otherwise make available any videos, images or websites other than those you have taken personally or created, are of a personal nature that contain images of people you know personally and who have consented to being in the video, and which are original art or animation (including any audio or music that is part of the video) created by you;
j. To extract the source code of the software for our Services, in whole or in part, or create any derivative works therefrom;
k. Post any obscene, lewd, lascivious, violent, harassing, defamatory, infringing, abusive, inflammatory, vulgar, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable content or content otherwise injurious to third parties or that consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam” or
l. Assist any third party in engaging in any activity prohibited by this Agreement.
5. Intellectual Property Rights.
a. Copyright. All materials on the Website and used in the Services, including without limitation, the QMaxx logos, designs, text, graphics, information, data, images, audio, video, applications, software, metadata, compilations, graphical user interfaces, other files, and the selection, arrangement and organization thereof are either owned by QMaxx or are the property of QMaxx’s suppliers, partners, endorsers or licensors (“Partners”). The Website content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without QMaxx’s prior written permission, your own user content that you legally post on the Websites. You are granted a limited license to access and use the Websites and the Services and to download or print a copy of any portion of the Website’s content to which you have properly gained access solely for your personal, non-commercial use, provided that you do not obscure, alter or delete any trademark, copyright, or other proprietary notices. All rights not expressly granted to you in this Agreement are exclusively reserved and retained by QMAXX or its Partners, or other content providers. Your license is subject to this Agreement and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Website or the Service beyond the scope of the license granted above is prohibited.
b. Trademarks. QMaxx, the QMaxx logos, and the other QMaxx product names, tag lines, logos, page headers, custom graphics, button icons, and scripts shown on the Website are service marks, trademarks or trade dress of QMaxx (“Marks”). Any use by you of the Marks will be solely in accordance with promoting QMaxx and maintaining the goodwill of QMaxx. All other uses are prohibited including but not limited to any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits QMaxx.
c. Copyright Infringement. QMaxx responds to notices of alleged copyright infringement and may terminate accounts of infringers consistent with the process set out in the U.S. Digital Millennium Copyright Act (“DMCA”).
6. DMCA Copyright Policy and Copyright Agent.
QMAXX may remove content that in its sole discretion appears to infringe the intellectual property rights of others. QMaxx, in its sole and absolute discretion, will terminate the accounts of users who infringe the intellectual property rights of others.
7. Representations and Warranties.
a. By Each Party. Each party represents and warrants to the other party:
i. That it has the full power and authority to enter into and perform its obligations under this Agreement,
ii. The assent to and performance by it of its obligations under this Agreement do not constitute a breach of or conflict with any other agreement or arrangement by which it is bound, or any applicable laws, regulations or rules, and
iii. This Agreement constitutes legal, valid and binding obligations of the parties executing or assenting to this Agreement, enforceable in accordance with its terms and conditions, except that: (x) such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, affecting creditors’ rights and remedies generally, and (y) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defense and to the discretion of the court before which any proceeding therefore may be brought.
b. By You. You represent and warrant to QMaxx that: (i) you will not infringe the patent, copyright, trademark, trade secret, right of publicity or other intellectual property or proprietary right of any third party in your use of the Websites or the Services, and (ii) you will comply with all applicable laws, rules and regulations in your use of the Services and the Websites, including this Agreement.
You agree to indemnify and hold QMaxx and its employees, representatives, agents, attorneys, affiliates, directors, officers, managers and shareholders (the “Indemnified Parties”) harmless from any damage, loss, cost or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach of any provision of this Agreement by you or, (ii) arising from, related to, or connected with your use of the Websites or the Services. If you are obligated to provide indemnification pursuant to this provision, QMaxx may, in its sole and absolute discretion, control the defense, settlement and disposition of any Claim at your sole cost and expense. Without limiting the foregoing, you may not settle compromise or in any other manner dispose of any Claim without the consent of QMaxx.
9. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
a. DISCLAIMER OF WARRANTIES. QMAXX PROVIDES THE WEBSITE AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. QMAXX DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE OR SERVICES OR THEIR USE (REGARDLESS OF HOW YOU INTERACT WITH US ONLINE, MOBILE APP OR IN ANY OTHER MANNER): (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE, DEVICE OR SOFTWARE YOU USE. QMAXX MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT.
b. THIRD PARTY SERVICES. THE THIRD-PARTY LINKS, SERVICES, GOODS, RESOURCES AND INFORMATION THAT QMAXX PROVIDES OR WILL PROVIDE IN THE FUTURE OR MAKES AVAILABLE THROUGH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, THOSE AVAILABLE THROUGH THIRD-PARTY ADVERTISEMENTS, IF ANY, ARE NOT CONTROLLED BY QMAXX. QMAXX MAKES NO WARRANTIES REGARDING SUCH THIRD-PARTY SERVICES, RESOURCES, AND INFORMATION, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT, AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH THIRD-PARTY SERVICES, RESOURCES OR INFORMATION.
c. EXCLUSION OF DAMAGES. QMAXX WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE WEB SITES OR SERVICES, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
d. LIMITATION OF LIABILITY. IN NO EVENT WILL QMAXX’S LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE, OR THE SERVICES EXCEED $500.
10. Force Majeure.
QMaxx shall not be liable for delays in delivery due to causes beyond its reasonable control including, but not limited to, acts of GOD, acts or omissions of the buyer, acts or omissions of civil or military authority, Government-assigned priorities, fire, strikes, floods, epidemics, quarantine, riot, war, delays in transportation, unavailability of equipment, and inability to obtain necessary labor, materials, or manufacturing rates or facilities. In the event of any such delay, the previously agreed delivery schedule shall be extended for a period equivalent to such delay.
11. Venue and Jurisdiction.
This Agreement is binding upon each party hereto and its successors and permitted assigns. This agreement and all transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of the State of Missouri. The Parties herein waive trial by jury and agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in St. Louis County, State of Missouri. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorney’s fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
a) QMaxx will have the right, in its sole discretion, for any reason or no reason at all, without notice or liability to you or any third party, to terminate your account or your access to the Website or Services, with or without cause.
b) You may terminate your profile or your account for any reason at any time by providing notice to QMaxx of your intention to do so, subject to this Agreement. Upon your termination, QMaxx may, in its sole discretion, delete any comments, website, files, graphics or other content or materials relating to your use of the Website or Services on QMaxx servers or otherwise in its possession or control.
13. Notices and Electronic Communications.
All notices required or permitted to be given under this Agreement will be in writing and delivered to the other party by any of the following methods: (i) hand delivery, (ii) certified U.S. mail, return receipt requested, postage prepaid, (iii) overnight courier, or (iv) electronic mail. Except for electronic mail, all notices must be sent to the QMaxx company address as shown on the Website.
QMaxx will provide notice to you using contact information provided by you. All notices will be deemed received as follows: (i) if by hand-delivery, on the date of delivery, (ii) if by delivery by U.S. mail, on the date of receipt appearing on a return receipt card, (iii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iv) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. When you use our Services or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Websites. Each party agrees that any notice that it receives from the other party electronically satisfies any legal requirement that such communications be in writing.
14. Limitation of Actions.
You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Website or Services, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
This Agreement contains the entire understanding between QMaxx and you regarding its subject matter, and supersedes all prior and existing agreements and understandings, whether oral or in writing.