FLY BOX TERMS & CONDITIONS
CUSTOMER AGREEMENT
This Customer Agreement (“Agreement”) is a binding agreement between FLY BOX VENTURES, LLC, an Idaho limited liability company doing business as (“QMAP”), the producer of QMAP and Tray Check software and the party set forth in the related Registration Form (“Customer”) incorporated herein by reference (together with any subsequent Registration Forms or other online signup, acceptance or order form submitted by Customer, including through e-mail, chat or phone conversations with QMAP salespersons (collectively, the “Registration Form”)), and applies to the purchase of all services ordered by Customer on the Registration Form and the use of the information, tools and functionality located on qmap.co, through any QMAP APIs, or through any software or other applications that interface with qmap.co or its API (collectively, the “Services”). As used herein the term “Customer” shall also include any and all users, customers, subscribers, affiliates, or others who sign up for, use or obtain services or products from QMAP or from any third party services or products of which are offered by or obtained through or in connection with QMAP, or who visit the websites of QMAP or its affiliates.
PLEASE READ THIS AGREEMENT CAREFULLY. BY SIGNING UP FOR AND USING THE SERVICES OR BY SIGNING OR CLICKING THE CHECKBOX OR “I ACCEPT” BUTTON IN THE REGISTRATION FORM, THE CUSTOMER HEREBY AGREES TO THE FOLLOWING TERMS OF SERVICE AND ANY TERMS INCORPORATED HEREIN BY SPECIFIC REFERENCE, INCLUDING, BUT NOT LIMITED TO, THE ACCEPTABLE USE POLICY POSTED AT http://QMAP.co/terms AND PRIVACY POLICY POSTED AT http://www.QMAP.co/privacy (COLLECTIVELY, THE “TERMS”).
CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING OUR ACCEPTABLE USE POLICY. CUSTOMER’S USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. FLYBOX RESERVES THE RIGHT TO MODIFY OR AMEND THESE TERMS WITHOUT NOTICE AT ANY TIME, AND SUCH MODIFICATION WILL BE EFFECTIVE UPON POSTING BY THE COMPANY ON ITS WEBSITE. CUSTOMER AGREES TO BE BOUND BY ANY CHANGES TO THESE TERMS WHEN CUSTOMER USES THE SERVICES AFTER ANY SUCH MODIFICATION IS POSTED. IT IS THEREFORE IMPORTANT THAT CUSTOMER READ THIS PAGE REGULARLY TO ENSURE CUSTOMER IS UPDATED AS TO ANY CHANGES. NOTE: THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY “DISPUTE” (AS DEFINED BELOW) BETWEEN YOU AND THE COMPANY.
1. Definitions
a. “QMAP System” means QMAP’s systems accessible by the Internet that facilitate, provide or describe the Services of the QMAP or Tray Check applications.
b. “Devices” shall mean any computer hardware, kiosk, network, storage, input/output, or electronic control devices, or software installed on such devices.
c. “IPs” means Internet Protocol addresses.
d. “Services” means those services offered by the QMAP and purchased by Customer.
2. Right to Use the Services; License Grant; Ownership
Subject to Customer’s compliance with the provisions of the Agreement, Customer is granted a nonexclusive, non-transferable, non-sublicensable, revocable, fee bearing, limited right to access and make use of the Services for Customer’s internal purposes. Customer agrees not to (i) sell, license (or sublicense), lease, assign, transfer, pledge, or share any of its rights under this Agreement with or to anyone else; (ii) modify, alter, reverse engineer, disassemble, de-compile, translate the Services and/or accompanying documentation, or grant any third party the right to do so; or (iii) violate any applicable laws or use the Services for any activities or content that is illegal under applicable law. All intellectual property rights evidenced by or embodied in the Services, are owned exclusively by QMAP and its suppliers. The rights granted to Customer are limited to those expressly stated in this Agreement. No additional rights or licenses are being granted by implication or otherwise and all such rights and licenses are expressly reserved. Any ideas, suggestions, modifications and the like made by Customer with respect to the Services will be the property of QMAP regardless of whether QMAP chooses to exercise its rights to incorporate such ideas, suggestions or modifications into the Services.
3. Prohibited Uses.
Customer is not permitted to use or direct the Services to interact with Devices or IPs if Customer is not expressly authorized to do so. Customer may not use the Services in a manner as to produce unreasonable load on Devices or IPs to which Customer has directed the Services to interact. Customer may not use any of the QMAP IP or Devices, directly or indirectly, to initiate, transmit, contribute, hack, or crack, direct or attempt any attack, or send bandwidth saturation, malicious or potentially damaging network messages to any Device, whether owned by QMAP or not. Customer must not direct any such attacks of any kind using any protocol at any of QMAP’s Devices. Customer may not direct bots, crawlers, spiders or any other automated process at QMAP’s computer systems. Customer must not, through the use of the Services or by any other means, create excessive load on any of QMAP’s Devices. Customer must not use the Services or QMAP’s Devices to perform any unlawful activity including but not limited to computer crime, transmission or storage of illegal content, or content or software in violation of intellectual property and copyright laws. If Customer gains access to any unauthorized information, then the Customer is required to report such access to QMAP immediately and destroy any and all electronic or hard copies of such information. A breach of any of the covenants discussed above will result in immediate termination of Services and, possibly referral to law enforcement authorities.
5. Customer Identity and Authority.
Customer will be required to provide current and accurate information in all electronic or hardcopy registration forms submitted to QMAP in connection with the Services. By accepting Services, Customer agrees not to impersonate or misrepresent in any way its affiliation or authority to act on behalf of any person, company, or other entity. By accepting these Terms or subscribing to the Services, the Customer agents using the Services or accepting these Terms, certify that he/she/it is authorized to act on behalf of the Customer, and are authorized by Customer as a representative of an individual, business or other legal entity having contractual usage rights owning or licensed to use, any and all IPs and the associated Devices to which you direct the Services to be performed. Customer agrees to cooperate with QMAP in reasonable measures to verify the identity and authority of persons using the Services.
6. Ineligible Parties.
To the extent permissible by law, Customer is ineligible to subscribe to the Services if: (1) Customer is a competitor of QMAP, (2) Customer or its agents using the Services have been convicted of any computer or Internet related crimes, (3) Customer is more than sixty (60) days past due on any monies owed to QMAP, or (4) Customer is located in a region that prohibits Customer from using the Services by law.
7. Conduct and Content.
Customer will use the Services in a businesslike and reasonable manner in accordance with the law. Customer will be responsible for its conduct while using the Services, as well as for any content Customer posts, distributes, transmits or solicits from others while using the Services. Customer will not use the Services in a way to distribute, link-to, transmit or solicit any content of any type that: (1) is unlawful, libelous, violates a contract, or regulation; (2) is obscene, harmful to minors, pornographic, invasive to another’s privacy, racist, unethical, or otherwise offensive; (3) solicits or advocates criminal behavior, violence or racism; (4) includes any computer code intended to disrupt, damage or impair any computer or network systems and software, such as viruses, trojans, back doors, or macros, whether or not any damage occurs; (5) covertly intercepts, downloads, copies, detrimentally interferes with, damages, or expropriates any system, data, or personally identifying information; (6) defaces the QMAP System or Services in any way; or (7) expose account access information such as Customer password or secret question. Customer will conform with all applicable laws, regulations, and QMAP’s policies regarding on-line conduct and content, including its Acceptable Use Policy.
8. Security.
Customer will not provide access to the Services by; (1) permitting unauthorized users to use Customer’s account; (2) making an account for someone who is not authorized to perform the role or view the information for which Customer has been granted access; or (3) failing to withdraw access for those persons who are no longer authorized to access the Services for any reason. Customer will immediately report to QMAP any unauthorized access from its account or the accounts of others for which Customer has authority, including but not limited to the use of accounts, passwords, or any other breach of security. Customer will not access another’s account, nor disrupt, interfere, or limit the functioning of the Services, or other’s enjoyment of the Services. Customer will not solicit other party’s password for any reason.
9. Term of Service.
a. Term.
Customer may choose a Term as indicated on the Registration Form. Customer agrees that the Agreement shall remain in effect for as long as Customer subscribes to, or uses the Services.
b. Automatic Renewal.
After the initial Term, QMAP shall automatically renew the Services on a month-to-month basis unless canceled by Customer per Section 16 herein. Customer’s account will be automatically charged each subscription period in advance of each monthly services. Customer agrees that subscription based Services will automatically renew at the end of each subscription period, at the then current list price for the Service, unless Customer cancels per Section 16 herein or negotiates an extended Term. Such cancellation must be made at least thirty (30) days prior to the end of Customer’s current subscription period. Each renewal of Services shall again be subject to these or modified Terms in effect at the time of renewal.
c. Termination of Service.
Customer agrees that this agreement can only be terminated by Customer after the expiration of the Term pursuant to Section 16 herein, and after Customer has stopped using the Services and has paid all monies owed to QMAP. Customer agrees that QMAP can terminate this agreement at any time with or without cause, if QMAP has reason to believe that Customer is violating the Terms in any way, or if the Service is permanently discontinued.
10. DISCLAIMER OF WARRANTY.
a. QMAP does not guarantee the accuracy of information found through its Services. Customer reliance on information found through its Services is at your own risk.
b. THE SERVICES, AND ALL ITS CONTENTS, ARE PROVIDED TO CUSTOMER “AS IS.” THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES, OR DATA ACCURACY.
c. UNDER NO CIRCUMSTANCES WILL THE COMPANY OR ANY OTHERS INVOLVED IN CREATING THE SERVICE BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES RESULTING FROM ANY CIRCUMSTANCE INVOLVING THE SERVICES (INCLUDING BUT NOT LIMITED TO DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, UNAUTHORIZED USE OF THE SYSTEM, LOST DATA, DELAY IN OPERATION OR TRANSMISSION, BREACH OF SECURITY, LINE FAILURE, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE WEBSITE, OR COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARMFUL COMPONENT), EVEN IF CUSTOMER HAS ADVISED THE COMPANY IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE.
d. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE CONTENTS AVAILABLE THROUGH THE SERVICES IN TERMS OF THEIR TIMELINESS, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CUSTOMER SHOULD NOT ASSUME THAT THE INFORMATION PROVIDED IS ALWAYS UP TO DATE OR THAT THE SYSTEM CONTAINS ALL THE RELEVANT INFORMATION AVAILABLE. WE UNDERTAKE NO OBLIGATION TO VERIFY OR MAINTAIN THE CURRENCY OF SUCH INFORMATION.
e. Applicable laws may not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations or exclusions may not apply to Customer. However, in no event shall QMAP’s aggregate liability to you or any third party for damages, losses, and causes of action exceed the amount paid by Customer, if any, for accessing the Services or $100, whichever is less. Customer agrees to bring any and all actions within one year from the date of the accrual of the cause of action, and that actions brought after this date will be barred.
f. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE COMPANY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY OR OTHER OBLIGATION NOT EXPRESSLY STATED IN THE TERMS.
11. Limitation of Liability.
CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT QMAP WILL NOT BE LIABLE FOR ANY DELAYS OR DAMAGES CAUSED BY QMAP’S SERVICES. CUSTOMER ALSO EXPLICITLY AGREES THAT QMAP SHALL HAVE NO LIABILITY OR OBLIGATION, WHETHER ARISING FROM CONTRACT, WARRANTY, TORT, OR OTHERWISE, FOR ANY LOSS OF REVENUE, PROFIT, DATA, USE OF MONEY, USE OF TIME, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, FORESEEN, FORESEEABLE, UNFORESEEABLE, OR OTHERWISE, ARISING FROM YOUR USE OF THE SERVICES, TO THE EXTENT ALLOWED BY LAW. THIS LIMITATION APPLIES TO ALL CLAIMS OR CAUSES OF ACTION INCLUDING BUT NOT LIMITED TO THOSE OCCURRING FROM SERVICE AVAILABILITY, YOUR ACCESS AND USE OF THIRD PARTY SERVICES, CONTENT OR SOFTWARE, OR ANY OTHER MATTER RELATED TO THE SERVICES.
12. Copyright and Intellectual Property.
All information provided by QMAP in connection with the Services is protected under copyright law. Except when authorized in writing by QMAP or elsewhere in these Terms, Customer must not distribute or duplicate this information in any form, whether for commercial purposes or not, any part of the Services. Unless indicated otherwise, Customer may view, download, copy, and print QMAP’s documents from the Services, as long as such documents are only for Customer’s use and are not displayed, distributed, customized, including defacing or removing copyright, trademark or other intellectual property ownership notices.
13. Privacy.
By agreeing to these Terms, the Customer also agrees that QMAP may gather and use Customer personnel’s personally identifying information in agreement with QMAP’s Privacy Statement. The Customer furthermore agrees to avoid accessing or revealing private or personally identifying information using the Services, and to obey any and all provisions of the Privacy Statement that may affect use of the Services. QMAP’s Privacy Statement is incorporated herein by reference, and is subject to change from time to time at QMAP’s sole discretion.
14. Confidentiality.
Except as provided in QMAP’s Privacy Statement, QMAP and Customer agree, that for a period of two (2) years following the expiration or termination of the Services, to hold each other’s Confidential Information (as defined below) in confidence and neither party will disclose any of that information to any third party without the prior written consent of the disclosing party. The parties additionally agree to use such Confidential Information of the disclosing party only for the purpose of performing the party’s obligations of this Agreement. Further, the receiving party shall use the same degree of care it would use with respect to its own Confidential Information in order to prevent the unauthorized disclosure to a third party, but can in no event use less than reasonable care. Customer understands and agrees that QMAP can transfer the Customer’s data, which was gathered by the Services purchased by Customer, to QMAP data centers for purposes of fulfilling QMAP’s obligations under these Terms. “Confidential Information” shall mean any non-public, proprietary information including, but not limited to, any information, data, equipment, designs, drawings, specifications, documentation, diagrams, development, flow charts, research, techniques, source code, ideas, inventions, concepts, software, processes, models, technical data or know-how relating to discoveries, object code, business plans or opportunities, business strategies, future projects or products, projects or products under consideration, procedures, and information related to finances, costs, prices, vendors, customers and employees that is disclosed by such party or on its behalf whether before, on or after the date hereof, directly or indirectly, in writing, orally, or by drawings or inspection of equipment or software, to the other party or any of its employees or agents. Customer agrees that passwords used by Customer to access its account and to receive Services will be treated as Confidential Information. Customer further agrees that the logos, trademarks or other identifying characteristics of Customer are not Confidential Information and that QMAP may identify Customer as a customer, provided that such reference does not include any Confidential Information. The obligations to protect Confidential Information in this Section shall not apply to information which: (1) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; (2) is or becomes publicly known through no act or failure to act on the part of the receiving party; (3) is approved by the disclosing party for disclosure without restriction; (4) became rightfully known to the receiving party, without confidential or proprietary restrictions, from a source other than the disclosing party; (5) is or was developed independently by the receiving party without use of or reference to any of the Confidential Information and without violation of any confidentiality restriction; or (6) is required to be disclosed by law.
15. Payment and Billing
Upon signing the Registration Form, the Customer is obliged to pay the total setup fee amount, training and/or full amount of the Annual Subscription Fee in advance for the first year or as defined on the Registration Form. Then on each anniversary date Customer shall pay the full amount of the Annual Subscription Fee for the subsequent years as specified in the Registration form and purchase order. With the exception of QMAP’s Refund Policy in section 18 below, prices during the agreed term are firm and non-refundable. The prices are fixed in USD and are exclusive of applicable taxes, which remain at the Customer’s expense. The subscription of licenses for additional Authorized Users during the Contract is carried out at the list price in force on the date of subscription. The Annual Subscription Fee per Additional Authorized User will be billed pro rata temporis for the current year. In the event of early termination of the Contract by the Customer, full annual subscription fee for the period remaining until the end of the Initial Term or Additional Term becomes immediately due and payable to the QMAP. Non payments beyond thirty (30) days shall receive the greater of a 1 ½ % Late Fee or $50.00.
The Customer acknowledges and agrees that the Service Provider reserves the right to revise the amount of the Annual Subscription Fee and any other charges applicable prior to each renewal of the Contract at the then current price.
QMAP will charge Customer in advance for each subscription period. When Customer subscribes to the Service, Customer must give QMAP a valid email address and a payment method (credit card, ACH, or check) that QMAP accepts. QMAP reserves the right to stop accepting Customer’s payment method or Customer’s payments. Customer must advise QMAP at once if Customer’s payment method expires, Customer closes their account, Customer’s billing address changes, Customer’s email address changes, or Customer’s payment method is cancelled and replaced on account of loss or theft.
16. Tray Check Kiosk
Hospitals and surgical centers may acquire Tray Check Kiosk hardware from QMAP. Customer understands that periodic delays or outages may be caused by forces beyond QMAP’s control, including, without limitation, supply shortages, server outages, or the failure of any third party to pride services required for such equipment to perform, thus Customer releases QMAP from any liability per sections, 7, 8, and 10 above. QMAP shall retain ownership of equipment until all payments have been made. The Tray Check Kiosk is manufactured for only qualified medical personnel who are trained in its use and care. Tray Check’s Kiosk is warranted to be free from defects in workmanship and materials for one (1) year from initial purchase. If customer elects the subscription option greater than two (2) years, then QMAP will extend the warranty for parts and materials for each year the contract is renewed and in good standing. Any Tray Check equipment with a defect during the warranty period will be promptly repaired or replaced at no charge to the Client. Work performed outside the warranty period or for reasons other than manufacturer defect will be billed at the service rate of $675 per instance.
16. Cancellation.
All cancellation requests must be submitted by emailing billing@qmap.co and must be made at least thirty (30) days prior to the expiration of the Service term.
17. Sales/Use Tax.
Customer shall pay all sales and other taxes, however designated, which are levied or imposed by reason of the transactions contemplated hereby, with the exception of taxes based on QMAP’s net income.
18. Refund Policy.
Customer may be eligible for a refund of some or all subscription fees in the event QMAP’s products and services (collectively the “Services”) fail to perform materially within the first thirty (30) days of service, as determined solely by QMAP. Any refund request must be made, in writing including the reasons for the refund, within thirty (30) days of signing up for the Services. Upon written notice of failure, QMAP shall be given fifteen (15) business days to cure the failure prior to the refund being accepted. In the event of a refund, QMAP may not be able to refund any taxes that Customer paid. If customer cancels Tray Check Kiosk within the first 30 days, there will be a 50% restocking/disposition fee for the hardware portion. QMAP will use commercially reasonable efforts to refund promptly any charges (less any amounts that Customer owes) to Customer. This Refund Policy shall not apply if Customer is found to be in violation of QMAP’s terms of service.
19. Breach.
Customer will be in breach of this agreement if the Customer fails to pay any amount owed to QMAP when due, subject to a 10 day grace period, or Customer fails to comply with the Terms of this Customer Agreement, Privacy Policy or Acceptable Use Policy. Unless otherwise stated, fees for Services are due in advance and subject to payment terms in the invoice(s) for the Services, which are incorporated into these Terms by reference. If Customer is found to be in default, QMAP may take any or all of the following actions to remedy the default and protect its interests: (1) declare all unpaid monies immediately due and payable; (2) terminate the Services; (3) take any other lawful action QMAP deems to be appropriate to enforce Customer’s obligations under these Terms. Customer agrees to pay costs and reasonable attorney’s fees QMAP might incur while enforcing its rights under this agreement.
20. Indemnity.
Customer agrees to indemnify, hold harmless, and defend QMAP, its agents, suppliers, officers, directors, employers, licensors, and/or third party information providers, or other connected parties from and against all losses, damages, costs, and attorney’s fees (“Claims”) stemming from violation of these Terms or any action, whether intentional, malicious, unintentional, wrongful or negligent, related to Customer’s account, Customer’s use of the Services or any other person or persons who use Customer’s user account.
21. Authorization to Enter this Agreement.
When requesting Services, Customer represents and warrants that he/she/it has full right, power, capacity, and authority to act on behalf of the affected parties. Upon request, Customer agrees to provide QMAP any material required to verify the above-stated Customer authority and authorization.
22. Modification of Terms and Services.
QMAP reserves the right to change these Terms from time to time. The modified Terms will be posted on this page. Customer should check this page from time to time for updates. Customer agrees that its use of the Services after the modification will be deemed full and adequate acceptance of the modified Terms. QMAP also reserves the right to change, discontinue or make temporarily unavailable the Services. Any new or modified features of the Services, unless explicitly stated otherwise, are subject to these Terms.
23. Entire Agreement.
Customer recognizes that these Terms, along with QMAP’s Privacy Policy and Acceptable Use Policy, constitute the complete agreement between Customer and QMAP. Customer agrees that these terms will supersede any prior agreements or statements made verbally or in writing.
24. Severability.
Customer agrees that if any term in this agreement is deemed to be invalid, unlawful or unenforceable for any reason, all other terms shall remain in force.
25. Governing Law.
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Idaho. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of Idaho and venue for any such claim shall be proper in the appropriate state or federal court located in Idaho Falls, Idaho.
26. Binding Individual Arbitration.
a. Purpose.
The term “Dispute” means any dispute, claim, or controversy between Customer and QMAP regarding any services provided, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. If Customer has a Dispute with QMAP or any of QMAP’s officers, directors, employees, attorneys and agents that cannot be resolved through negotiation within the time-frame described in the “Notice of Dispute” clause below, other than those matters listed in the Exclusions from Arbitration clause, Customer and QMAP agree to seek resolution of the Dispute only through arbitration in accordance with the terms of this Section, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
b. Exclusions from Arbitration.
CUSTOMER AND THE COMPANY AGREE THAT ANY CLAIM FILED BY EITHER PARTY IN SMALL CLAIMS COURT AND ANY CLAIM FOR AMOUNTS OWED FOR SERVICES RENDERED ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION.
c. Notice of Dispute.
IF CUSTOMER HAS A DISPUTE WITH THE COMPANY, CUSTOMER MUST SEND WRITTEN NOTICE TO THE COMPANY TO GIVE THE COMPANY THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. Customer agrees to negotiate resolution of the Dispute in good faith for no less than 60 days after Customer provides notice of the Dispute. If the Dispute is not resolved within 60 days from receipt of notice of the Dispute, Customer or QMAP may pursue Customer’s claim in arbitration pursuant to the terms in this Section.
d. Class Action Waiver.
ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE COMPANY SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
e. Initiation of Arbitration Proceeding/Selection of Arbitrator.
If Customer or QMAP elects to resolve the Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS www.jamsadr.com. The terms of this Section govern in the event they conflict with the rules of the arbitration organization selected by the parties.
f. Arbitration Procedures.
Because the Service provided to Customer by QMAP concerns interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules, and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if a claim does not exceed $75,000 and Customer provided notice to and negotiated in good faith with QMAP as described above, if the arbitrator finds that Customer is the prevailing party in the arbitration, Customer will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to QMAP or Customer. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
g. Location of Arbitration.
All claims for arbitration shall be submitted to and heard by the office of AAA located in Ada County, Idaho. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in Idaho Falls Idaho.
h. Severability.
If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court and both parties each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
i. Continuation.
This Section shall survive any termination of this Agreement.
27. Waiver of Rights.
Customer agrees that the only way to waive rights under these Terms is explicitly and in writing. Any failure to enforce any right under this agreement will not waive that right.
28. Independent Contractor.
The parties are independent contractors and nothing contained in this Agreement places either in the relationship of principal and agent, master and servant, partners or members of a joint venture. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
29. Headings.
The headings herein are for convenience only and are not part of this Agreement.
30. Notices.
All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Only QMAP may give written notice to Customer via electronic mail to the Customer’s electronic mail address as maintained in QMAP’s billing records.
31. Force Majeure.
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
32. No Third-Party Beneficiaries.
Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, terms or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer agrees and acknowledges that any third-party supplier of a product or service that is identified as a third-party beneficiary in the Services, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
33. Government Regulations.
Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
34. Marketing.
Customer agrees that during the term of this Agreement QMAP may publicly refer to Customer, orally and in writing, as a Customer of QMAP or Tray Check. Any other public reference to Customer by QMAP requires the written consent of Customer.
ACCEPTABLE USE POLICY
1. General Information.
QMAP, LLC (“QMAP”) developed this Acceptable Use Policy (“AUP”), which supplements and explains certain terms of each customer’s respective service agreement and is intended as a guide to the customer’s rights and obligations when utilizing QMAP’s services. This AUP will be revised from time to time. A customer’s use of QMAP’s services after changes to the AUP are posted on QMAP’s web site at http://www.qmap.co/terms, will constitute the customer’s acceptance of any new or additional terms of the AUP that result from those changes.
2. Scope.
This AUP governs the usage of QMAP’s products and services (the “Services”). This AUP is incorporated by reference into each contract QMAP enters into with a customer (each, a “Customer”) for the use of such Services. QMAP may modify this AUP at any time without notice.
3. Purpose.
The purpose of this AUP is to enhance the quality of the Services and to protect QMAP’s customers, and the Internet community as a whole, from illegal, irresponsible, or disruptive Internet activities. This AUP applies to each Customer and its employees, agents, contractors or other users of such Customer who obtain Services from QMAP (each such person being a “User”). Each User should use common sense and good judgment in connection with the Services.
4. Prohibited Uses.
Customers and Users may not:
a. Utilize the Services in connection with any illegal activity. Without limiting the general application of this rule, Customers and Users may not: i. Utilize the Services to copy material from third parties (including text, graphics, music, videos or other copyrightable material) without proper authorization; ii. Utilize the Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party; iii. Utilize the Services to traffic in illegal drugs, illegal gambling, obscene materials or other any products or services that are prohibited under applicable law; iv. Utilize the Services to export encryption software to points outside the United States in violation of applicable export control laws; v. Utilize the Services to forge or misrepresent message headers, whether in whole or in part, to mask the originator of the message; or vi. Utilize the Services in any manner that violates applicable law.
b. Utilize the Services in connection with any tortious or actionable activity. Without limiting the general application of this rule, Customers and Users may not: i. Utilize the Services to publish or disseminate information that (A) constitutes slander, libel, or defamation, (B) publicizes the personal information or likeness of a person without that person’s consent, or (C) otherwise violates the privacy rights of any person. ii. Utilize the Services to threaten persons with bodily harm, to make harassing or abusive statements or messages, or to solicit the performance of acts or services that are illegal under applicable law. iii. Utilize the Services in connection with any other disruptive or abusive activity. Without limiting the general application of this rule, Customers and Users may not: a. Utilize the Services to cause denial of service attacks against QMAP or other Internet users or to otherwise degrade or impair the operation of QMAP’s servers and facilities or the servers and facilities of other Internet users; or b. Utilize the Services to subvert, or assist others in subverting, the security or integrity of any QMAP systems, facilities or equipment; or c. Utilize the Services to gain unauthorized access to the computer networks of QMAP or any other person; or d. Utilize the Services to provide passwords or access codes to persons not authorized to receive such materials by the operator of the system requiring the password or access code; or e. Utilize the Services to (A) forge the signature or other identifying mark or code of any other person, (B) impersonate or assume the identity or any other person, or (C) engage in any other activity (including “spoofing”) to attempt to deceive or mislead other persons regarding the true identity of the User (excluding the use of anonymous re-mailers or Internet nicknames); or f. Utilize the Services to distribute or post any virus, worm, Trojan horse, or computer code intended to disrupt services, destroy data, destroy or damage equipment, or disrupt the operation of the Services; or g. Utilize the Services to conduct port scans or other invasive procedures against any server (except any server for which the User is an authorized system administrator); or h. Utilize the Services to distribute, advertise or promote software or services that have the primary purpose of encouraging or facilitating unsolicited commercial e-mail or SPAM; or i. Utilize the Services to solicit or collect, or distribute, advertise or promote, e-mail address lists for the purpose of encouraging or facilitating unsolicited commercial e-mail or SPAM; or j. Utilize the Services in any manner that might subject QMAP to unfavorable regulatory action, subject QMAP to any liability for any reason, or adversely affect QMAP’s public image, reputation or goodwill, including, without limitation, sending or distributing sexually explicit, hateful, vulgar, racially, ethnically or otherwise objectionable materials as determined by QMAP in its sole discretion; or k. Attempt to attack, disrupt, or abuse the support and contact- related mechanisms of QMAP, including, but not limited to, telephone lines, email addresses, fax lines, bulletin boards or contact/signup forms; or l. Utilize the Services in any other manner to interrupt or interfere with the Internet usage of other persons.
5. Violations
a. Disclaimer.
QMAP expressly disclaims any obligation to monitor its Customers and other Users with respect to violations of this AUP. QMAP has no liability or responsibility for the actions of any of its Customers or other Users or any content any User may post on any Web site.
b. Reporting Non-Copyright Violations.
QMAP encourages Users to report violations of this policy by e-mail to: abuse@qmap.co, including in any such report the name of the offending domain and the type of abuse in the “subject” field of the e-mail.
c. Remedies.
If QMAP learns of a violation of this AUP, QMAP will respond to the applicable Customer and may, in QMAP’s sole discretion, take any of the following actions, in accordance with the severity and duration of the violation: i. Warn the Customer; and/or ii. Suspend the offending Customer from the Services; and/or iii. Terminate the offending Customer from the Services; and/or iv. Impose fees or charges on the offending Customer account in accordance with the applicable service contract; and/or v. Take other action in accordance with this AUP, the applicable service contract or applicable law.
6. Reservation of Rights.
QMAP reserves the right to cooperate with appropriate legal authorities in investigations of claims of illegal activity involving QMAP’s Services, Customers and other Users. QMAP reserves all other rights to respond to violations of this AUP to the extent of applicable law and in accordance with any applicable contractual obligations. QMAP may utilize technical means to monitor communications into, and out of, its network facilities to prevent the introduction of viruses or other hostile code, to prevent intrusions and otherwise to enforce this AUP and each Customer agrees that QMAP is authorized to monitor its communications through QMAP’s network for such purposes.