Terms of Service
Last Modified: February 3, 2016
Your use of the Software is expressly conditioned on your acceptance of the terms and conditions of this agreement. If you do not agree to the terms and conditions of this agreement, you may not install or use the Software.
If you download, access, or use the Software on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
Please read this Agreement carefully to ensure that you understand each provision. This Agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
1. About This Agreement
This Agreement applies to all Software and Documentation made available by Q-Sensei Corp. and its affiliates (“Q-Sensei”) to you. “Software” means the software computer programs, in object code format currently made available under the name “Fuse” (or a successor product) in connection with which this Agreement is provided, as may be updated by any updates, upgrades or other new features, functionality or enhancements to the Software made available to you (such updates, “Software Updates”). “Documentation” means any online read me, help files, or other related explanatory materials that may accompany the Software. Q-Sensei, at its discretion, may make available future Software Updates; Q-Sensei is not obligated to provide any Software Updates. The Software Updates, if any, may not necessarily include all existing software features or new features that Q-Sensei releases. You hereby acknowledge that Software Updates may be automatic, and you understand that such Software Updates may delete data or change certain features or functionality of the Software. You further acknowledge that it is your responsibility to ensure that the Software is current and complete, and accordingly you hereby agree that you will be fully liable for your failure to properly or completely update the Software. The terms of this Agreement will govern any Software Updates provided by Q-Sensei that replace and/or supplement the Software, unless such Software Update is accompanied by a separate license in which case the terms of that license will govern.
The Software and Documentation are licensed, not sold, to you by Q-Sensei. Subject to the terms and conditions of this Agreement, you are hereby granted a revocable, limited, non-exclusive license (without the right to sublicense) to install and use the Software solely for your non-commercial use as it relates to your operations. If you would like to use the Software for commercial purposes, please contact us at firstname.lastname@example.org and we will provide you with the applicable terms and conditions for a commercial license. For each Software license key that you acquire, you may use the Software on one (1) machine. You agree to use your best efforts to prevent and protect the contents of the Software and Documentation from unauthorized disclosure or use, and you may not distribute or make available the Software over a network where it could be used by multiple computers at the same time. Q-Sensei and its licensors reserve all rights, including but not limited to ownership and intellectual property rights, not expressly granted to you. Q-Sensei’s licensors are the intended third party beneficiaries of this Agreement and have the express right to rely upon and directly enforce the terms set forth herein. There are no implied licenses granted by Q-Sensei under this Agreement. Except as specified above, you shall have no rights to the Software.
3.1 Limitation on Use
You may not use the Software or Documentation except as permitted in this Agreement. Except with Q-Sensei’s prior written consent, you may not: (a) alter, modify or create any derivative works of the Software,
the underlying source code, or the Documentation in any way, including without limitation customization, translation or localization; (b) port, reverse compile, reverse assemble, reverse engineer, or otherwise attempt to separate any of the components of the Software or derive the source code for the Software (except to the extent applicable laws specifically prohibit such restriction); (c) copy, redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software or Documentation; (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or Documentation; (e) block, disable or otherwise affect any advertising, advertisement banner window, links to other sites and services, or other features that constitute an integral part of the Software; or (f) use the Software or Documentation for third-party training, commercial time-sharing, service bureau, software-as-a-service (“SAAS”) or similar use. You may not cause or permit any third party to do any of the foregoing.
3.2 Third Party Software
You acknowledge that the Software may contain copyrighted software of Q-Sensei’s suppliers which are obtained under a license from such suppliers (“Third Party Software“). All third party licensors and suppliers retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third Party Software shall be subject to, and you shall comply with, the terms and conditions of this Agreement, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials, including without limitation an end user license agreement.
3.3 Q-Sensei Audit Rights
Q-Sensei reserves the right, upon prior notice to Customer, to audit usage of the Software at Customer’s premises during normal business hours to verify Customer’s compliance with the terms of this Agreement. If Q-Sensei determines as a result of such audit that any fees are due from Customer to Q-Sensei under the terms of this Agreement, Customer shall immediately pay such amounts due along with interest in an amount equal to one and one-half percent (1.5%) of the underpayment per month, or at the highest interest rate permitted by applicable law, whichever is less, calculated monthly from the date the underpayment was due until the date payment is made; and if such amount exceeds five percent (5%) of the cumulative fees previously paid under this Agreement, Customer shall reimburse Q-Sensei for the reasonable cost of such audit.
3.4 Delivery of Software and Documentation
All Software and Documentation, and any updates or maintenance releases thereof, shall be delivered only through an electronic transfer.
4. Proprietary Rights
You acknowledge and agree that the Software belongs to Q-Sensei or its licensors. You agree that you neither own nor hereby acquire any claim or right of ownership to the Software and Documentation or to any related patents, copyrights, trademarks or other intellectual property. Q-Sensei and its licensors retain all right, title and interest in and to all copies of the Documentation and the Software at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. The Software and Documentation are protected by copyright and other intellectual property laws and by international treaties.
You may not make any copies of the Software except for your own personal use. Any and all other copies of the Software or Documentation made by you are in violation of this license. All content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright law. This license gives you no rights to such content. All trademarks used in connection with the Software and Documentation are owned by Q-Sensei, its affiliates and/or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder. All suggestions or feedback provided by you to Q-Sensei with respect to the Software shall be Q-Sensei’s property and deemed Confidential Information of Q-Sensei.
5. No Support
This Agreement does not itself entitle you to receive from Q-Sensei or its licensors hard-copy documentation, support, telephone assistance, or enhancements or updates to the Software or Documentation.
6. Term and Termination
This Agreement and your right to use the Software and Documentation may be terminated by you or by Q-Sensei at any time upon written notice. This Agreement automatically terminates if you fail to comply with its terms and conditions. Immediately upon termination, you shall return or destroy all copies of the Software and Documentation in your possession, custody or control and if requested you shall certify to Q-Sensei in writing that such return or destruction has occurred. The following sections of this Agreement survive any expiration or termination hereof: 1, 3, 4, and 6 through 15 (inclusive).
7. Warranty Disclaimer
You agree that the Software and Documentation are provided “as is” and “as available” with all faults and without warranty of any kind. Q-Sensei and its licensors make no other warranty as to the Software or Documentation, including without limitation uninterrupted use, accuracy, and data loss. Q-Sensei and its licensors disclaim all other warranties, express or implied, including but not limited to the implied warranties of merchantability, satisfactory quality, quiet enjoyment, non-infringement and fitness for a particular purpose (even if Q-Sensei knows or should have know of such purpose), related to the Software or Documentation, its use or any inability to use it, the results of its use and this agreement. Q-Sensei and its licensors do not warrant that the Software or Documentation or any results of use thereof will be free of defects, errors or viruses, reliable or able to operate on an uninterrupted basis or in a particular environment or that errors therein, if any, will be corrected. Further, Q-Sensei does not warrant against interference with your enjoyment of the Software, that the functions contained in, or services performed or provided by the Software will meet your requirements, that any service will continue to be made available, that defects in the Software will be corrected, or that the Software will be compatible or work with any third party Software. You further acknowledge that the Software are not intended or suitable for use in situations or environments where the failure or time delays of, or errors or inaccuracies in, the content, data, or information provided by the Software could lead to death, personal injury, or severe physical or environmental damage. The foregoing disclaimers apply to you solely to the extent permitted by applicable law. You may have legal rights in your country of residence that would prohibit the foregoing limitations from applying to you. To find out more about your rights, please contact a local consumer advice organization.
8. Limitation of Liability
To the fullest extent permitted by law, Q-Sensei and its licensors shall not be liable for any damages, whether in contract or tort (including negligence) or any other legal or equitable theory, arising from this agreement, including without limitation any indirect, consequential, special, exemplary, incidental damages, even if Q-Sensei has been advised of the possibility of such damages. You agree that you shall have the sole responsibility for protecting your data, by periodic backup or otherwise, used in connection with the Software. In any case, Q-Sensei’s sole liability and your exclusive remedy under any provision of this agreement shall be the replacement of the Software found to be defective, with the exception of death or personal injury caused by the negligence of Q-Sensei to the extent applicable law prohibits the limitation of damages in such cases.
You agree to defend, indemnify and hold harmless Q-Sensei and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Software, including any data or content transmitted or received by you; (b) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) any content that is submitted by you including without limitation misleading, false, or inaccurate information; (f) your negligence, gross negligence, or willful misconduct; or (g) any other party’s access and use of the Software with your unique username, password or other appropriate security code.
“Confidential Information” shall mean the Software and Documentation and all other information disclosed to you that Q-Sensei characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this Agreement, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Q-Sensei. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Q-Sensei in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with Q-Sensei in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Q-Sensei prior to such disclosure to allow Q-Sensei an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Q-Sensei in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
11. Injunctive Relief
You acknowledge and agree that your breach or threatened breach of this Agreement shall cause Q-Sensei irreparable damage for which recovery of money damages would be inadequate and that Q-Sensei therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
12. Export Controls
The Software and Documentation and the underlying information and technology may not be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software and/or Documentation, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and you agree to comply with all export laws and other applicable laws. If you are using the Software or Documentation outside the U.S.A., then the following shall apply: (i) You confirm that this Agreement and all related documentation is and will be in the English language; (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software and Documentation, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
13. U.S. Government End Users
The Software and Documentation each were developed by private financing and constitute “Commercial Items,” as that term is defined at 48 C.F.R. §2.101. The Software consists of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, all U.S. Government End Users acquire only those rights in the Software and the Documentation that are specifically provided by this Agreement. Consistent with 48 C.F.R. §12.211, all U.S. Government End Users acquire only technical data and the rights in that data customarily as specifically provided in this Agreement.
14. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
14.1 Governing Law
You agree that: (i) the Software shall be deemed solely based in California; and (ii) the Software shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general,
in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Q-Sensei. For any dispute with Q-Sensei, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Q-Sensei has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Q-Sensei agree otherwise. If you are using the Software for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Software for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Q-Sensei from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
14.3 Class Action/Jury Trial Waiver
With respect to all persons and entities, regardless of whether they have obtained or used the Software for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this agreement, you and Q-Sensei are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Q-Sensei without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
15.2 Notification Procedures and Changes to this Agreement
15.3 Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with Q-Sensei in connection with the Software, shall constitute the entire agreement between you and Q-Sensei concerning the Software. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
15.4 No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Q-Sensei’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
15.5 Expiration of Claims
Any claim or cause of action you may have with respect to Q-Sensei or the Software must be commenced within one (1) year after the claim or cause of action arose.
Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.