Gait Keeper For Law User Agreement
BY SIGNING UP FOR Q-IT LLC’S SERVICES, AND IN CONSIDERATION OF THE SERVICES PROVIDED TO YOU BY Q-IT LLC, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, WHICH CONSTITUTE A LEGALLY ENFORCEABLE SOFTWARE-AS-A-SERVICE (“SaaS”) AGREEMENT GOVERNING YOUR USE OF THE GAIT KEEPER FOR LAW SOFTWARE ONLINE SERVICE (THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18, HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE, YOU HAVE THE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION, AND YOU AND YOUR ORGANIZATION ARE NOT A DIRECT COMPETITOR OF Q-IT LLC (OR OTHERWISE REPRESENT, DIRECTLY OR INDIRECTLY, THE INTERESTS OF A DIRECT COMPETITOR). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18 AND HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE AND YOU ARE NOT A DIRECT COMPETITOR OF Q-IT LLC.
AS USED IN THIS AGREEMENT, THE TERM “GRANTEE” MEANS THE ENTITY OR PERSON RESPONSIBLE FOR THE ACCOUNT ESTABLISHED PURSUANT TO THIS AGREEMENT AND EACH USER ACCESSING THE SERVICE BY MEANS OF A VALID ACCOUNT ESTABLISHED BY GRANTEE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, THE TERM “GRANTEE” MEANS ALL EMPLOYEES OF YOUR ORGANIZATION WHO ARE GIVEN ACCESS TO THE SERVICE. IF YOU DO NOT HAVE THE REQUISITE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, OR IF YOU ARE A DIRECT COMPETITOR OF Q-IT LLC (OR REPRESENT THE INTERESTS, DIRECTLY OR INDIRECTLY, OF A DIRECT COMPETITOR) YOU MAY NOT ATTEMPT TO ENTER INTO OR ENTER INTO THIS AGREEMENT OR USE THIS SERVICE.
As used in this Agreement:
“ Agreement” means this Gait Keeper for Law User Agreement, the original form, any subsequent billing changes, whether written or submitted online via the Gait Keeper For Law service, and any materials available on www.GaitKeeperlaw.com specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Q-IT LLC from time to time in its sole discretion pursuant to the provisions of this Agreement;
“ Authorized Administrator(s)” means the person(s) designated by Grantee to register for the Services online to create User accounts and otherwise administer Grantee’s use of the Service;
“ Client Data” means any of Grantee’s customer’s or other individual’s personal data, credit data, biometric data, transaction data, system data, other data, information or material that Grantee accepts, utilizes, processes or collects from customers or individuals and/or submits to Q-IT LLC in the course of using the Service;
“ Content” means the information, documents, software, products and services made available under this Agreement to Grantee and any User in connection with their use of the Service;
“ Q-IT LLC” means Q-IT LLC, a Pennsylvania limited liability company, having a principal place of business at: 629-D Lowther Road, Lewisberry, PA 17339, US;
“ Q-IT LLC SaaS Technology” means all of the proprietary technology of Q-IT LLC (including software, hardware, products, business concepts, and processes, logic algorithms, graphical user interfaces (GUI), techniques, designs and other tangible or intangible technical material or information) made available to Grantee by Q-IT LLC in providing the Service;
“ Effective Date” means the earlier of either the date this User Agreement is accepted by Grantee as indicated by Grantee’s clicking any of the signup buttons from any page on www.GaitKeeperlaw.com or the date Grantee begins using the Service;
“ Hosting Server Provider” means any third party hosting computer server provider(s) where the Services reside.
“ Intellectual Property Rights” means all rights, title and interest in and to the Q-IT SaaS Technology, the Content, the Service and all copyrights, patents, trade secrets, trademarks, service marks or other intellectual property or proprietary rights and any corrections, bug fixes, improvements, enhancements, updates, releases, or other modifications, including custom modifications made by Q-IT LLC relating thereto, and the media on which same are furnished;
“ Order Form(s)” means the form available on www.GaitKeeperlaw.com evidencing the initial designation of Service and any subsequent Order Forms, specifying, among other things, the edition of the Service selected and covered by the Grant (as defined in Section 2.1, below), the Term, the number of Users, the applicable Use Fee (as defined below), the billing period, and other services and Charges (as defined below), as agreed to between Q-IT LLC and Grantee, each such Order Form to be incorporated into and to become a part of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail;
“ Service(s)” means the version of the Gait Keeper For Law software application, or other offerings developed, operated, and maintained by Q-IT LLC, accessible via www.GaitKeeperlaw.com or another designated web site or IP address, or ancillary services rendered to Grantee by Q-IT LLC, to which Grantee is being granted access under this Agreement;
“ Site” means the www.GaitKeeperlaw.com website or another designated web site or IP address and web portals provided therethrough to which Grantee is being granted access under this Agreement.
“ Term(s)” means the period(s) during which a specified number of Users have the right to use the Service pursuant to the Grant and as designated on an Order Form(s);
“ User(s)” means Grantee’s employees, representatives, consultants, contractors or agents who are authorized under the Grant made by this Agreement to gain access to and use the Service and who have been supplied User identifications and passwords by Grantee (or by Q-IT LLC at Grantee’s request).
2. GRANT OF RIGHTS; TERM AND RESTRICTIONS
2.1 Grant of Rights. Subject to Grantee’s compliance with the terms and conditions of this Agreement and solely during the Term of this Agreement, Q-IT LLC hereby grants Grantee a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to use the Service solely for Grantee’s own internal business or educational purposes (the “Grant”).
2.2 Term of Grant. The Grant shall be one (1) calendar month, and shall commence on the Effective Date (the “Initial Term”), and will be automatically renewed for successive terms of one (1) calendar month (each a “Renewal Term”) unless terminated by either party in accordance with the terms of this Agreement.
2.3.1 Q-IT LLC and its licensors reserve all rights not expressly granted to Grantee. The Grant cannot be shared or used in any Users other than those referenced in the Order Form referenced above. However, the Grant may be reassigned from time to time to new Users that are replacing former Users which have terminated and no longer use the Service, so long as Grantee obtains the prior written consent of Q-IT LLC with respect to any such reassignment, which consent shall not be unreasonably withheld. The Grant is conditional on Grantee’s continued compliance with the terms or conditions of this Agreement and will terminate if Grantee does not comply with any term or condition of this Agreement.
2.3.2 Grantee shall not, and shall not attempt to, directly or indirectly:
License, grant, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or any part of its Content in any way;
Use the Service to submit, store, transmit or process malicious code, worms or viruses;
Use the Service to submit, store, transmit or process Client Data that is or may be:(a) threatening, harassing, degrading, hateful or intimidating; (b) libelous or defamatory; (c) fraudulent, tortious or unlawful; (d) obscene, indecent, pornographic or otherwise objectionable; or (e) infringing of any person’s rights, any applicable laws or Grantee’s obligations to any third party;
Use the Service to submit, store, transmit, process, or otherwise disclose Client Data;
Use the Service to submit, store, transmit or process Client Data that would violate state or federal or foreign privacy laws, or in a way that would give rise to criminal or civil liability or that encourages unlawful activity;
Use the Service to submit, store, transmit or process User data that would violate state or federal or foreign labor laws, or in a way that would give rise to criminal or civil liability or that encourages unlawful activity;
Gain unauthorized access to the Service or to the systems or networks of Q-IT LLC or its customers;
Except as otherwise expressly permitted by this Agreement, reproduce, duplicate, copy, sell, resell, rent, sublicense, transfer, lease, make available or exploit the Service (or any part of the Service), use of the Service, or access to the Service;
Publish or disclose any benchmarks of the Service to third parties;
Interfere with or disrupt the integrity or performance of the Service or third-party content contained therein;
Impersonate any person or entity or misrepresent Grantee’s affiliation with any person or entity in connection with the Service;
Modify, alter, tamper with, repair, or create derivative works of any Content or any software included in the Service;
Reverse engineer, disassemble, or decompile the Service or apply any other process or procedure to derive the source code of any software included in the Service;
Access, use or attempt to modify the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas;
Copy, frame, mirror or link to any part or content of the Service, other than on Grantee’s own intranets or otherwise solely for Grantee’s own internal business purposes;
Access the Service in order to (a) build a competitive product or service, (b) build a product or service using ideas, features, functions, or graphics similar to those of the Service, or (c) copy any ideas, features, functions, or graphics of the Service;
Remove any copyright, trademark or other proprietary rights notice from the Service; or
Provide access to the Service to a third party(-ies) who does or attempts to do any of the foregoing.
3. THE SERVICE
3.1 Use of the Service. Q-IT LLC will provide Grantee with use of the Service, including a browser interface and data encryption, transmission, access and storage in the edition selected by Grantee in the Order Form.
3.2 Availability of the Service. Q-IT LLC makes no guarantees as to the continuous availability of the Service or of any specific features of the Service. Q-IT LLC may change or discontinue the Service or change or remove any features or functionalities of the Service from time to time. If Grantee does not agree to any such change, its only recourse is to terminate this Agreement in accordance with Section 12 of this Agreement.
3.3 Access to the Service.
3.3.1 Q-IT LLC operates the Site to provide Grantee with access to the Service, which will be available to Grantee through the internet via a secured, password-protected computer interface or access code. Grantee agrees to access the Site at its own risk and that it is solely responsible for ensuring that the method of access, content and scope, and Grantee’s use off the Service is compatible with its own business needs and requirements.
3.3.2 Following the Effective Date of this Agreement and Grantee’s completion of any applicable set-up forms and other documents that may be required by Q-IT LLC, Q-IT LLC will electronically deliver, or otherwise make available, to Grantee instructions on how to establish a connection with the Site for access to and use of the Service.
3.3.3 Grantee agrees that only the designated User(s) will be permitted to access the Services and that Grantee is responsible for any unauthorized access. In addition,
Grantee shall assume full responsibility that its Users abide by the terms and conditions of this Agreement and Grantee understands and agrees that any passwords and access codes are for use only by Grantee and its designated User(s) and are strictly prohibited from being shared with other individuals or entities. Finally, Grantee agrees that the unauthorized sharing of any passwords and/or User access codes may cause Q-IT LLC irreparable harm and that, in addition to Q-IT LLC’s right to pursue available remedies including, but not limited to injunctive relief and the collection of monetary damages, such breach shall, at Q-IT LLC’s option, result in the immediate suspension or termination of this Agreement and Grantee’s access to the Services. Grantee agrees to defend, indemnify and hold harmless Q-IT LLC from any and all losses, costs, damages, liabilities and expenses (including, without limitation, reasonable attorney’s fees) incurred or arising from any claim, demand or cause of action relating to any breach of the promises made herein to Q-IT LLC at Sections 3.3.1, 3.3.2 and this Section 3.3.3.
3.3.4 Q-IT LLC will use commercially reasonable efforts to maintain the active status of the Site, the Service, and any Hosting Server Provider computer servers, but Grantee agrees that Q-IT LLC will not be liable for any loss, cost, damage or expense resulting from or relating to Grantee’s lack of access to the Site or the Services including, without limitation: (i) times that Q-IT LLC, its Licensor and/or its Hosting Server Provider may be updating or maintaining the Services, the Software, and/or any hardware; and (ii) during such times as the Site and/or the Services may be inaccessible for any reason (or for no identifiable reason) whatsoever, within or outside of Q-IT LLC’s control.
3.3.5 Grantee agrees that Q-IT LLC does not and will not provide Grantee with hardware or software necessary for Grantee to gain access to the Site and the Services. Rather, Grantee is solely responsible for: (a) obtaining and maintaining such hardware and software (including, but not limited to, acquiring, installing and maintaining all telephone equipment, modems, routers, scanning devices, and other hardware and communication equipment) necessary to gain access to the Services, and the performance and security of such devices; (b) contracting with an internet service provider or telecommunications carrier for services necessary to establish Grantee’s connection and access to the internet, the Site, and the Services. In addition, Grantee agrees that it is solely responsible for all costs, charges and expenses associated with the foregoing.
4. INTERNET DELAYS
The Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Q-IT LLC is not responsible for any delays, failures, losses, claims, or other damage arising from such limitations, delays, and other problems.
Q-IT LLC shall provide support at www.GaitKeeperlaw.com/support/. The Service will be unavailable from time-to-time for routine maintenance. Other support may be excluded on national holidays of the United States, including New Year’s Day, Martin Luther King Jr. Day, George Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Eve, Christmas Day and New Year’s Eve.
6. GRANTEE’S RESPONSIBILITIES
Grantee is responsible for all activity occurring under Grantee’s User accounts and for Users’ compliance with the terms and conditions of this Agreement. Grantee shall fully comply with all applicable local, state, federal, and foreign laws, treaties, rules, and regulations in connection with Grantee’s use of the Service, including, without limitation, those related to data privacy, data security, breach notification, international communications, and the collection, transmission, processing, cross-border transfer, and disclosure of Client Data, including technical and personal data. Grantee shall: (i) notify Q-IT LLC immediately of any known or suspected violation of any law relating to Client Data; (ii) notify Q-IT LLC immediately of any unauthorized use of any password or account or any other known or suspected breach of Service security; and (iii) report to Q-IT LLC immediately and use reasonable efforts to stop immediately, any copying or distribution of Content that is known or suspected by Grantee or any User under this Grant.
7. CLIENT DATA
7.1 Client Data. Grantee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of any of its Client Data and agrees that any support provided by Q-IT LLC in the provision of the Services shall not be construed by Grantee of the accuracy, quality, integrity, legality, reliability, or appropriateness of any of its Client Data.
7.2 Grantee Responsibilities. Q-IT LLC shall not be responsible or liable for: (i) the deletion, correction, destruction, and/or damage, to any Client Data; or (ii) Grantee’s or User’s collection, use, storage, cross-border transfer, or disclosure of the Client Data.
representation regarding data use or disclosure applicable to the Client Data; or any right of any person.
7.4 Review of Client Data. Q-IT LLC shall not have any obligation to monitor or review Client Data for any purpose. Notwithstanding the foregoing, Q-IT LLC reserves the right to take steps that it believes are reasonably necessary to enforce and/or verify compliance with this Agreement. Without limiting the foregoing, Q-IT LLC may, without notice (unless required by law) or liability to Grantee, access, use and/or preserve Grantee’s account information and/or Client Data and disclose Grantee’s account information and/or Client Data to law enforcement authorities, government officials and/or any other party as Q-IT LLC reasonably believes necessary or appropriate: (i) if Q-IT LLC is required to do so to comply with legal process or governmental request, (ii) to enforce this Agreement, (iii) to detect or prevent security, fraud or technical issues,
to protect the rights, property and/or safety of Q-IT LLC, its users, Grantee, or any other person, or (v) as permitted by law. Q-IT LLC also reserves the right to notify the appropriate authorities, without prior notice to Grantee, if Q-IT LLC reasonably believes that Grantee’s Client Data violates any applicable law. Grantee agrees to hold Q-IT LLC harmless from and against any losses, costs, damages liabilities and expenses, and waives (to the extent permitted by applicable law) any claims, Grantee or other third party may have against Q-IT LLC, resulting from any disclosure, investigation or act or omission of Q-IT LLC in the course of conducting or cooperating with an inspection as set forth in this section. Grantee further agrees to keep the fact and details of any such inspection confidential, unless grantee is compelled by applicable law to disclose such fact and/or details.
8. INTELLECTUAL PROPERTY OWNERSHIP
8.1. Ownership. Q-IT LLC (and its licensors, where applicable) owns all rights, title and interest, including all related Intellectual Property Rights, in and to the Q-IT LLC SaaS Technology, the Content, the Service, and any suggestions, ideas, improvements, enhancement requests, feedback, recommendations or other information provided by Grantee or any User relating to the Service. The GAIT KEEPER name, Q-IT LLC name, the Q-IT LLC logo, and the names associated with the Service are trademarks of Q-IT LLC or third parties, and no right or license is granted to use them. This Agreement is not a sale and does not convey to Grantee any rights of ownership in or related to the Service, the Q-IT LLC SaaS Technology, the Content or the Intellectual Property Rights owned by Q-IT LLC. Grantee acknowledges that, except as specifically provided under this Agreement, no other right, title, or interest in these items is granted.
9. PAYMENT OF FEES AND CHARGES
Grantee shall pay all fees or charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The fee for the Grant (the “Use Fee”) will be equal to the Use Fee currently in effect under the current Q-IT LLC
schedule of Use Fees for the edition selected in the Order Form. If Grantee is a monthly subscriber, the initial Use Fee will be payable the same day as an order, and, thereafter, Q-IT LLC will automatically bill Grantee’s credit card or debit card on a monthly basis. New accounts may be eligible for a thirty (30) day trial period, after which Grantee will be charged according to the terms of this Section. Grantee is responsible for paying all User Fees ordered for the entire Term, without regard to whether all Users are active. Grantee must provide Q-IT LLC with a valid credit card or debit card number as a condition to signing up for the Service. An Authorized Administrator may add additional Users by executing an additional Order Form or using the Q-IT LLC Billing page online. Added Users will be subject to the following:
The use Term of added Users will be contemporaneous with the Term of the existing Grant;
Users added in the middle of a billing period will be charged in full for that billing month. The current Q-IT LLC User pricing model is based on a flat rate, which per-User fee may be changed from time to time at Q-IT LLC’s sole discretion. Information is available at www.GaitKeeperlaw.com/billing/.
Q-IT LLC reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Grantee. The Use Fee for a renewal Grant will be equal to the number of total users then in effect, times the User Fee in effect at the time of renewal. Charges for other services (“Charges”) will be made on an as-quoted basis. The Use Fee and Charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Grantee shall be responsible for payment of all such taxes, levies, or duties, excluding only federal or state taxes based solely on Q-IT LLC’s income.
If Grantee updates its payment information, Q-IT LLC will charge the latest account provided by Grantee. Grantee represents that Grantee has the legal right to use any payment account that Grantee uses to purchase from Q-IT LLC. Grantee agrees to update billing and account information within three (3) business days of any change to applicable payment information, as well as to Grantee’s legal name, street address, e-mail address, and the names and telephone numbers of an authorized billing contact and Authorized Administrator. If the contact information Grantee provides is false or fraudulent, Q-IT LLC reserves the right to terminate Grantee’s access to the Service, in addition to any other legal remedies. If Grantee believes that the fees or Charges to Grantee’s account are incorrect, Grantee must contact Q-IT LLC in writing within forty-five (45) days of the date of the charge in question, to be eligible for consideration to receive an adjustment or credit. All payments shall be in United States currency and are final. Q-IT LLC will not provide full or partial refunds.
In the event of termination of this Agreement, Grantee agrees to pay the balance due on Grantee’s account (plus any applicable late payment charges). Grantee agrees that Q-IT LLC may charge such unpaid fees and Charges to Grantee’s credit card or debit card or otherwise bill Grantee for such unpaid fees and Charges.
10. NON-PAYMENT AND SUSPENSION
10.1 Suspension / Termination for Delinquent Accounts.
Q-IT LLC reserves the right to suspend or terminate this Agreement and Grantee’s access to the Service immediately if Grantee’s account becomes delinquent or Grantee is otherwise unable to provide proper payment. In the event a Grantee’s account is suspended as a result of non-payment, a reactivation fee will be applied upon the reactivation of the account, plus, to the fullest extent permitted by law, all expenses and legal fees incurred by Q-IT LLC while collecting fees and Charges from Grantee. Grantee agrees that, if Grantee’s use of the Service is suspended but not terminated, Grantee will be obligated for and agrees to pay the Use Fee for the number of Users for the balance of the full Term. Q-IT LLC reserves the right to impose a reconnection fee in the event Grantee’s rights are suspended and thereafter requests access to the Service. Q-IT LLC will charge a reconnection fee for each suspended or deactivated user, should Q-IT LLC be asked by Grantee to reactivate a specific user and Q-IT LLC so agrees. Grantee agrees and acknowledges that Q-IT LLC has no obligation to retain Client Data and that such Client Data may be irretrievably deleted if Grantee’s account is delinquent.
10.2 Late Payment Charges. Invoices and accounts that are not paid in full within fifteen
days of the applicable due date are subject to a late payment charge equal to ten percent (10%) of the aggregate Use Fee then due or the maximum charge permitted by applicable law, whichever is lower.
11.1 Termination for Convenience. Q-IT LLC may terminate this Agreement, or reduce the number of Users, effective upon the expiration of the then current Term, by notifying Grantee in writing at least ten (10) business days prior to the end of the current Term. Grantee may terminate this Agreement, update billing information, or reduce the number of users, effective upon the expiration of the then current Term, by contacting Q-IT LLC as indicated at www.GaitKeeperlaw.com/contact/ at least ten (10) business days prior to the end of the current Term.
11.2 Termination for Cause. Q-IT LLC may, in its sole and absolute discretion, immediately suspend or terminate Grantee’s password, account and use of the Service if Q-IT LLC determines in its sole and absolute discretion that Grantee or any User has breached any provision of this Agreement, or for any other reason at Q-IT LLC’s discretion. No refunds will be provided on the unused monthly portion of a terminated account.
11.3 Termination of Free Accounts. Q-IT LLC may terminate a free account at any time in its sole discretion without notice to Grantee.
11.4 Access to Client Data Upon Termination. In the event this Agreement is terminated (other than by reason of Grantee’s breach), Q-IT LLC will make available to Grantee a file of the Client Data within sixty (60) days of termination if Grantee so requests in writing at the time of termination. A processing fee shall be charged by Q-IT LLC for this service. Grantee agrees and acknowledges that Q-IT LLC has no obligation to retain the Client Data, and may delete, without incurring any liability, such Client Data, on the sixty-first (61st) day after termination for any reason (other than by reason of Grantee’s breach.) Q-IT LLC reserves the right in its sole and absolute discretion to withhold, remove and/or discard Client Data, without notice or liability, for any breach of this Agreement by Grantee, including, without limitation, Grantee’s non-payment. Upon termination due to Grantee’s breach, Grantee’s right to access or use Client Data shall immediately cease, and Q-IT LLC shall have no obligation to maintain or provide any Client Data.
Sections 2, 6-8, 10-17 and 20-24 shall survive the termination of this Agreement.
13. REPRESENTATIONS & WARRANTIES
13.1 Representations and Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Q-IT LLC represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will be capable of performing substantially in accordance with the online Q-IT LLC support documentation under normal use and circumstances. In addition to its other representations and warranties contained herein, Grantee represents and warrants that Grantee has not falsely identified Grantee or any User nor provided any false information to gain access to the Service and that Grantee’s billing information is correct.
14. DISCLAIMER OF WARRANTIES
14.1 Services provided on an “AS IS” Basis. THE SERVICE AND ALL CONTENT, INCLUDING, WITHOUT LIMITATION, ANY THIRD-PARTY PRODUCTS OR SERVICES MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED TO GRANTEE STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, OTHER THAN THOSE EXPRESSLY MADE ELSEWHERE IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Q-IT LLC AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA,
THE SERVICE WILL MEET GRANTEE’S REQUIREMENTS OR EXPECTATIONS,
ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED
OR OBTAINED BY GRANTEE THROUGH THE SERVICE WILL MEET GRANTEE’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14.2 Exclusions. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY Q-IT LLC AND ITS LICENSORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. SOLELY TO THE EXTENT SUCH LAW APPLIES TO GRANTEE, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO GRANTEE, AND GRANTEE MAY HAVE ADDITIONAL RIGHTS.
15. LIMITATION OF LIABILITY
15.1 Liability Exclusions. IN NO EVENT SHALL Q-IT LLC, ITS MEMBERS, AFFILIATES, SUBSIDIARIES, AND LICENSORS, OR EACH SUCH ENTITY’S RESPECTIVE MANAGERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS (EACH A “Q-IT LLC ENTITY”, AND COLLECTIVELY, THE “Q-IT LLC ENTITIES”) BE LIABLE TO GRANTEE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE, SECURITY OF DATA (INCLUDING BUT NOT LIMITED TO CLIENT DATA), IN THE POSSESSION, CONTROL, OR STORAGE OF GRANTEE, GOODWILL, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR CONTENT, INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE SERVICE (INCLUDING AS A RESULT OF ANY TERMINATION OR SUSPENSION OF GRANTEE’S ACCOUNT), OR FOR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE Q-IT LLC ENTITIES BE LIABLE FOR NEGLIGENCE, INTENTIONAL MISCONDUCT OR MISHANDLED BUSINESS BY GRANTEE UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, SUCH CONDUCT BETWEEN GRANTEE AND (1) THE IRS OR ANY GOVERNMENT AGENCY; (2) ANY ACCOUNTING AUDIT SERVICE; (3) ANY EMPLOYEE OF GRANTEE; (4) ANY SUPPLIER OF GRANTEE; (5) ANY END CONSUMERS OR USERS OF GRANTEE (INCLUDING IN CONNECTION WITH REFUNDS AND CHARGEBACKS); AND (6) ANY MERCHANT SERVICES.
15.2 Limit of Liability. IN ANY CASE, THE AGGREGATE LIABILITY OF THE Q-IT LLC ENTITIES UNDER, OR ARISING FROM OR RELATED TO, THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY AND DUE FROM GRANTEE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY SUCH LIABILITY.
15.3 Legal Limitations. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. SOLELY TO THE EXTENT SUCH LAW APPLIES TO GRANTEE, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO GRANTEE, AND GRANTEE MAY HAVE ADDITIONAL RIGHTS.
16.1 Grantee Indemnification. Grantee shall defend, indemnify and hold harmless the Q-IT LLC Entities from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (i) Grantee’s or any User’s use of the Service or collection, use, disclosure, or cross-border transfer of any Client Data; (ii) Grantee’s or any User’s use of the Service or collection, use, disclosure, or cross-border transfer of any User Data; or (iii) the breach or alleged breach by Grantee or any User(s) of any of Grantee’s obligations, representations, or warranties under this Agreement; provided in any such case, that the Q-IT LLC Entity(-ies) (a) gives written notice of the claim promptly to Grantee (except that the Q-IT LLC Entity’s failure to promptly notify Grantee will not limit, impair, or otherwise affect the Q-IT LLC Entity’s rights under this Section 16 unless Grantee is prejudiced by that failure and then only to the extent of the prejudice); (b) gives Grantee sole control of the defense and settlement of the claim (except Grantee may not settle any claim without the Q-IT LLC Entity’s prior written consent, unless the settlement includes a full and final release of all claims against the Q-IT LLC Entity and does not impose any obligations on the Q-IT LLC Entity); (c) provides to Grantee reasonable assistance (including reasonable access to information in the possession or control of the Q-IT LLC Entity); and (d) has not compromised or settled such claim.
16.2 Q-IT LLC Indemnification. Q-IT LLC shall defend, indemnify and hold harmless Grantee and its subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with an allegation that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided in any such case, that Grantee (a) promptly gives written notice of the claim to Q-IT LLC (except that Grantee’s failure to promptly notify Q-IT LLC will not limit, impair, or otherwise affect Grantee’s rights under this Section 16 unless Q-IT LLC is prejudiced by that failure and then only to the extent of the prejudice); (b) gives Q-IT LLC sole control of the defense and settlement of the claim (except Q-IT LLC may not settle any claim without Grantee’s consent, unless the settlement includes a full and
final release of all claims against Grantee and does not impose any obligations on Grantee); (c) provides to Q-IT LLC all available information and assistance; and (d) has not compromised or settled such claim. Q-IT LLC shall have no indemnification obligation, and Grantee shall indemnify the Q-IT LLC Entities, for claims arising from any infringement alleged to be caused by the combination of the Service with any of Grantee’s products, services, hardware, software, and/or business process.
17. LOCAL LAWS AND EXPORT CONTROL
The Service provided on the Q-IT LLC Site includes services and uses software and technology that may be subject to United States labor and privacy laws, as well as export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. Grantee acknowledges and agrees that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are maintained and made available to the public by the relevant government agency, and are subject to change without notice. By using the Service, Grantee represents and warrants that Grantee is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Grantee agrees to comply strictly with all U.S. and European Union export laws and assume sole responsibility for obtaining any necessary licenses to export or re-export. The Service provided on the Site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Q-IT LLC and its licensors make no representation that the Service is appropriate or available for use in other locations. If Grantee uses the Service from outside the United States of America and/or the European Union, Grantee is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
Q-IT LLC may give notice to Grantee by means of a general notice on the Service, electronic mail to Grantee’s e-mail address on record in Q-IT LLC’s account information, or by written communication sent by first class mail or pre-paid post to Grantee’s
address on record in Q-IT LLC’s account information. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). Grantee may give notice to Q-IT LLC (deemed given upon receipt by Q-IT LLC) as indicated at www.GaitKeeperlaw.com/contact/.
19. MODIFICATION TO TERMS
Q-IT LLC reserves the right in its sole and absolute discretion to modify the terms and conditions of this Agreement or its policies relating to the Service at any time effective upon posting of an updated version of this Agreement on the Service. Grantee is responsible for regularly reviewing this Agreement. Continued use of the Service after any such modifications have been posted shall constitute Grantee’s consent to such modifications. Notwithstanding the foregoing, any modifications to this Agreement shall not apply to any dispute between Grantee and Q-IT LLC arising prior to the effective date of any such modifications.
Except as otherwise provided in this Agreement, this Agreement may not be assigned by Grantee without the prior express written consent of Q-IT LLC. This Agreement may be assigned by Q-IT LLC without Grantee’s consent to (i) a member, affiliate, or subsidiary, (ii) an acquirer of the Q-IT LLC business or assets, or (iii) a successor by division, conversion, or merger. Any purported assignment in violation of this section shall be null and void.
21. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania and controlling United States federal law without regard to the choice or conflict of law’s provisions of any jurisdiction. Should any provision of this Agreement be declared illegal or unenforceable and cannot be modified to be enforceable, such provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect.
CONSENT TO JURISDICTION FOR DISPUTES, ACTIONS, CLAIMS OR CAUSES OF ACTION
Grantee irrevocably submits to the jurisdiction of the Court of Common Pleas of Dauphin County, Pennsylvania and to the jurisdiction of the United States District Court for the Middle District of Pennsylvania situated in Harrisburg, Pennsylvania for the purposes of any action or proceeding arising out of or relating to this Agreement, the Service, or the subject matter hereof and brought by any other party, and waives and agrees not to assert, by way of motion, as a defense or otherwise, in any such action or proceeding, any claim that (a) is not personally subject to the jurisdiction of such courts,
the action or proceeding is brought in an inconvenient forum, or (c) the venue of the action or proceeding is improper.
23. WAIVER OF JURY TRIAL
GRANTEE HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF AND BROUGHT BY ANY OTHER PARTY.
24. FORCE MAJEURE
The Q-IT LLC Entities will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond such entities’ reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
No joint venture, partnership, employment, or agency relationship exists between Grantee or any User and Q-IT LLC as a result of this Agreement or use of the Service. The failure of Q-IT LLC to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Q-IT LLC in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between Grantee and Q-IT LLC and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Grantee consents to receiving electronic communications and notifications from Q-IT LLC in connection with Grantee’s use of the Service and this Agreement. Grantee agrees that any such communication will satisfy any legal communication requirements, including that such communications be in writing.
If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision will be fully severable and this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part of this Agreement; and the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there will be added automatically by Q-IT LLC in its sole and absolute discretion as part of this Agreement, a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
BY SIGNING UP AND USING Q-IT LLC’S SOFTWARE AS A SERVICE, YOU AGREE TO THE ABOVE TERMS AND CONDITIONS WHICH CONSTITUTE A LEGALLY ENFORCEABLE SaaS AGREEMENT GOVERNING GRANTEE’S USE OF THE SERVICE.
ALL NOTIFICATION CONTACT INFORMAITON AS SET FORTH ABOVE, MAY BE CHANGED BY Q-IT LLC FROM TIME TO TIME, WHICH CHANGES SHALL BE POSTED ON THE WWW.GAITKEEPERLAW.COM WEBSITE.