TERMS OF SERVICE
EFFECTIVE AS OF MAY 21, 2018
THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR ACCESS AND USE OF THIS WEBSITE QUANTYST.COM AND OTHER QUANTYST URLs AND WEBSITES (COLLECTIVELY, THE “SITES”), THE QUANTYST SOFTWARE PLATFORM (“QUANTYST PLATFORM”), AND ANY OF OUR SERVICES (“SERVICES”). THE SITES AND THE QUANTYST PLATFORM SHALL BE INCLUDED IN THE DEFINITION OF SERVICES FOR PURPOSES OF THESE TERMS. If You have entered into a separate executed agreement with Quantyst, and there is any inconsistency between the terms of that agreement and the terms of these Terms, to the extent of a conflict, the conflicting terms in such executed agreement will control.
1. ACCEPTANCE OF TERMS
1.1 Quantyst, Inc. (“Quantyst,” “We” or “Our”) provides its Services and access to and use of the Quantyst Platform and Sites subject to these Terms.
2. DESCRIPTION OF SERVICES
2.1 The “Services” include (a) the Sites, (b) the Quantyst Platform, and (c) the other services provided to You through the Sites, including all data, text, images, sounds, videos, and other content made available through the Sites, or developed via your use of the Services (collectively, “Content”). Any new features added to or augmenting the Services are also subject to these Terms.
2.2 The Services may include certain open source code licensed by third parties. All such open source code is licensed pursuant to separate open source license terms and not these Terms.
3. GENERAL CONDITIONS/ACCESS AND USE OF THE SERVICES
3.1 Subject to the terms and conditions of these Terms, Quantyst hereby grants You a non-exclusive, non-transferable limited license to access and use the Services only for: (i) Your internal business use if You have purchased a subscription to the Services for the period of time for which You have paid Quantyst (“Subscription Period”); or (ii) Your internal evaluation of the Services if You have received a free trial license to the Services (“Free Trial License”) for a period as agreed with Quantyst (“Free Trial Period”). Any trial license for which You have paid Quantyst will be treated as a subscription license for a Subscription Period hereunder.
Subject only to Your limited right to access and use the Services as expressly granted to You here, all rights, title and interest in and to the Services and their components, including all related intellectual property rights, will remain with and belong exclusively to Quantyst and its third-party vendors. 3.2 You agree not to (a) use the Services other than as authorized by these Terms; (b) resell, sublicense, share, or otherwise make the Services available to any third party; (c) use the Services either directly or indirectly to support any activity that is illegal; (d) access the Services for purposes of monitoring the Services’ performance or functionality; (e) modify, adapt or “hack” the Services to falsely imply any sponsorship or association with Quantyst, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (f) use the Services in any manner that interferes with or disrupts its integrity or performance; (g) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Services; (h) use the Services to knowingly post, upload, link to, send or store any content that contains any viruses, malware, Trojan horses, time bombs, or similar harmful software; (i) use the Services in any way that negatively affects Quantyst’s business, goodwill or reputation; (j); upload, transmit or provide any information, data, text, messages and other materials (including personal information) to the Services unless you have obtained all necessary authorizations and lawful bases required for processing and use (including consent where necessary); or (k) authorize any third parties to do any of the above.
3.3 You are responsible for all information, data, text, messages or other materials that You post or is otherwise transmit through the Services on your behalf. You hereby grant to Quantyst a non-exclusive license to use Your data as necessary to provide You with the Services, including but not limited to accessing Your data as necessary to identify or resolve technical problems with the Quantyst Platform. You retain ownership of Your data. You are responsible for maintaining the confidentiality of Your login and account, if any, and are fully responsible for any and all activities that occur under Your login or account. You agree and acknowledge that Your login may only be used by one (1) person, and that You will not share a single login among multiple people.
3.4 Quantyst’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
3.5 If You purchase a paid subscription for a Subscription Period, You are expressly agreeing that Quantyst is permitted to bill You the applicable fees, any applicable tax and any other charges You may incur with Quantyst in connection with your purchase of a license to the Services (“Charges”). Charges do not include taxes, if applicable, and You will pay any taxes imposed on You. The Charges will be invoiced to You and payable net 30 days from the invoice date or will be billed to the credit card account You provide in accordance with the billing terms in effect at the time the Charges are due and payable. If payment is not received or cannot be charged to your credit card account for any reason, Quantyst reserves the right to either suspend or terminate your access to the Services and terminate these Terms. All purchases are non-cancellable and all charges are non-refundable except as expressly set forth herein. 3.6 By using the Services, You consent to receiving electronic communications from Quantyst. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Services. These electronic communications are part of your relationship with Quantyst and You receive them as part of your purchase. You agree that any notices, agreements, disclosures or other communications that we send You electronically will satisfy any legal communication requirements, including that such communications be in writing.
3.7 You acknowledge and agree that Quantyst will automatically charge your credit card account on record with Quantyst upon the commencement of any renewal Subscription Period.
4. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
4.1 Subject to your rights in Your data, Quantyst retains all right, title and interest in and to all of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You to use the Services under these Terms do not convey any additional rights in the Services or in any Intellectual Property Rights associated therewith.
4.2 Quantyst shall have, and You hereby grant to Quantyst, a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback Quantyst receives from You. Quantyst and Quantyst’s product and service names and logos used or displayed on the Services are registered or unregistered trademarks of Quantyst (collectively, “Marks”). You may only use such Marks to identify yourself as a customer and user of the Services subject to any trademark usage guidelines provided by Quantyst to You from time to time; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Quantyst, its services or products. Any goodwill arising out of Your usage of the Quantyst Marks shall inure to the benefit of Quantyst
5. THIRD PARTY SERVICES
The Services may contain links to, or otherwise may allow You to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Our Services. If You decide to access and use such Other Services, be advised that Your use is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Your data. Quantyst is not liable for any damage or loss caused or alleged to be caused by or in connection with Your access or use of any such Other Services, or Your reliance on the privacy practices or other policies of such Other Services.
6. LIMITED WARRANTIES AND DISCLAIMER OF WARRANTIES
THE SERVICES, INCLUDING THE SITES, QUANTYST PLATFORM, AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND QUANTYST EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT QUANTYST DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM QUANTYST OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
7. LIMITATION OF LIABILITY
7.1 NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS HEREUNDER.
7.2 LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, QUANTYST’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM THE SERVICES: (I) WITH RESPECT TO A PAID SUBSCRIPTION SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) ANY PAYMENTS (IF ANY) MADE BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM AND (II) WITH RESPECT TO A FREE TRIAL LICENSE, SHALL BE LIMITED TO THE AMOUNT OF ONE HUNDRED DOLLARS.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 7.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THESE TERMS, IF ANY, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF QUANTYST WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
7.3 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE STATES, QUANTYST’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold harmless Quantyst from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms, or Your and Your end users’ access to, use, misuse or illegal use of the Services or arising from Your data. Quantyst will provide You notice of any such claim, suit, or proceeding. Quantyst reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist Quantyst’s defense of such matter.
9. ASSIGNMENT; ENTIRE AGREEMENT; CHANGES TO TERMS
9.1 You shall not assign these Terms to any third party except upon Quantyst’s prior written consent. Any purported assignment in violation of this section shall be void. Subject to the foregoing, these Terms and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
9.2 Quantyst may alter the Terms at any time, so please review them frequently. If a material change is made, Quantyst may notify You in the Services, by email, by means of a notice on the Services, or other places we think appropriate. A “material change” will be determined at Quantyst’s sole discretion, in good faith, and using common sense and reasonable judgment. If You disagree with such changes, You may decline to continue using the Services.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
11. EXPORT COMPLIANCE AND USE RESTRICTIONS
Certain Content and components of the Services may be subject to U.S. export control and economic sanctions laws. If You are subject to U.S. laws, You agree to comply with all such laws and regulations as they relate to the Content and access and use of the Services. You shall not access or use the Services if You are located in Burma (Republic of the Union of Myanmar), Cuba, Iran, Libya, North Korea, Sudan, or Syria (the “Prohibited Jurisdictions”), and You shall also not provide access to the Services to any government, entity or individual located in the Prohibited Jurisdictions.
12. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
13. TERM; TERMINATION AND SURVIVAL
13.1 Each Subscription Period will automatically renew for additional periods equal to the expiring Subscription Period at Quantyst’s then-current rates, unless You or Quantyst give the other party written notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Period. You may terminate these Terms at any time by ceasing use of the Services but You will not receive any refund of prepaid fees for the current Subscription Period, if applicable. Quantyst may terminate these Terms at any time for any reason or for no reason, with or without notice, during the Free Trial Period. Quantyst additionally may terminate these Terms on thirty (30) days written notice to You if You breach any of these Terms and the breach remains uncured at the end of such thirty (30) day period. On any termination of these Terms You will cease using the Services.
13.1 Section 3.2, Section 4 (Intellectual Property Rights), the disclaimers in Section 6, and Sections 7 (Limitation of Liability) through 15 (Federal Government End Use Provisions) will survive any termination of these Terms.
14. DISPUTE RESOLUTION
These Terms shall be governed by and construed in accordance with the laws of the State of California applicable to agreements made and performed in California, excluding the application of the conflict of laws provisions. You agree that any action or suit brought by a party to enforce or adjudicate Your rights under this Agreement shall be brought in the federal or state courts located in San Francisco County, California.
15. FEDERAL GOVERNMENT END USE PROVISIONS
If You are a U.S. federal government end user, the Services are “Commercial Items” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of these Terms.