QOMPLX OS TERMS OF SERVICE AGREEMENT
LAST UPDATED: July 17, 2019
Please read this QOMPLX OS Terms of Service Agreement (the “Agreement”) carefully. Your use of the Solution (as defined below) constitutes your consent to this Agreement.
This Agreement is between you (the individual accessing and using the Solution and/or the entity on whose behalf you are acting) and QOMPLX, Inc. (“ QOMPLX” or “ we” or “ us”) concerning your use of (including any access to) the solution known as “QOMPLX OS” (together with any materials and services available on or through such solution, successor solution(s) to such solution, and any website or mobile software application through which QOMPLX makes such solution or successor solution(s) available to you, the “ Solution”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by QOMPLX through the Solution, or otherwise made available to you by QOMPLX.
By using the Solution, you affirm that you are of legal age to enter into this Agreement. If you are an individual accessing or using the solution on behalf of, or for the benefit of, any corporation, partnership, or other entity with which you are associated (an “ Organization”), then, subject to the last sentence of this paragraph, you are agreeing to these terms on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Solution and to any such Organization. Notwithstanding the foregoing, if such Organization and QOMPLX enter into or have previously entered into a separate written agreement relating to the Solution or other subject matter of this Agreement (any such agreement, an “ Organization Agreement”), such Organization Agreement will govern such Organization’s access to and use of the Solution and supersede this Agreement to the extent and as set forth in such Organization Agreement and, in the event of any conflict between the provisions of this Agreement and such Organization Agreement, the provisions of such Organization Agreement shall prevail.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 16 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
1. Changes. We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Solution. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the Solution following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Solution (including access to the Solution via any third-party links); charge, modify or waive any fees required to use the Solution; or offer opportunities to some or all Solution users.
3. Jurisdictional Issues. The Solution is controlled or operated (or both) from the United States, and is not intended to subject QOMPLX to any non-U.S. jurisdiction or law. The Solution may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Solution is at your own risk, and you must comply with all applicable laws, rules, and regulations in doing so. We may limit the Solution’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Rules of Conduct.
In connection with the Solution, you must:
1. Be responsible for obtaining, maintaining, and paying for all hardware and all telecommunications and other services needed to use the Solution.
In connection with the Solution, you must not:
1. Post, transmit, or otherwise make available through or in connection with the Solution any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent, or otherwise tortious; (c) obscene, indecent, pornographic, or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
2. Post, transmit, or otherwise make available through or in connection with the Solution any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment (each, a “ Virus”).
3. Use the Solution for any commercial purpose, including using the Solution for or in connection with any facility management, service bureau, or time-sharing purposes, services, or arrangements, or otherwise use the Solution for processing data or other information on behalf of any third party.
4. Use the Solution for any purpose that is fraudulent or otherwise tortious or unlawful.
5. Harvest or collect information about users of the Solution.
6. Interfere with or disrupt the operation of the Solution or the servers or networks used to make the Solution available, including by hacking or defacing any portion of the Solution; or violate any requirement, procedure, or policy of such servers or networks.
7. Restrict or inhibit any other person from using the Solution.
8. Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute, or otherwise exploit any portion of (or any use of) the Solution except as expressly authorized herein, without QOMPLX’s express prior written consent.
9. Reverse engineer, decompile, or disassemble any portion of the Solution, except where such restriction is expressly prohibited by applicable law.
10. Remove or alter any copyright, trademark, or other proprietary rights notice on the Solution.
11. Frame or mirror any portion of the Solution, or otherwise incorporate any portion of the Solution into any product or service, without QOMPLX’s express prior written consent.
12. Systematically download and store Solution content.
13. Use any robot, spider, site search/retrieval application, or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Solution content, or reproduce or circumvent the navigational structure or presentation of the Solution, without QOMPLX’s express prior written consent.
If you violate these rules, you do so at your own risk, accept full responsibility for any negative consequences that may follow, and release QOMPLX from any and all liability of any kind resulting from such violation.
5. Registration; No Sharing of User Name and Password. You may need to register or otherwise establish an account to use all or part of the Solution. We may reject, or require that you change, any user name, password, or other information that you provide to us in registering or otherwise establishing an account. Your user name and password are for your personal use only and should be kept confidential. You must not provide your user name and password to any other person or entity for purposes of accessing or using the Solution. You, and not QOMPLX, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your account. You must not, directly or indirectly, allow any other person or entity to use your account to access or use the Solution.
6. Submissions. Solution users may make available certain materials (each, a “Submission”) through or in connection with the Solution (for example, reports generated by using the Solution), including through the Solution’s interactive services or sharing functionality. QOMPLX has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. If you choose to make any of your personally identifiable or other information publicly available through the Solution, you do so at your own risk, accept full responsibility for any negative consequences that may follow, and release QOMPLX from any and all liability of any kind for such consequences.
7. License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable, and fully sub-licensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze, exploit and practice such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you provide to us any ideas, proposals, suggestions, or other information or materials (“ Feedback”), whether related to the Solution or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited, without restriction, and does not place QOMPLX under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this Section, and that your Submissions, and your provision thereof through and in connection with the Solution, are complete and accurate, and are not fraudulent, tortious, or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
8. Monitoring. We may (but have no obligation to) monitor, evaluate, alter, or remove Submissions before or after they appear on the Solution, or analyze your access to or use of the Solution. We may disclose information regarding your access to and use of the Solution, and the circumstances surrounding such access and use, to anyone in connection with performing services for you, in connection with operating the Solution, or for analytic, statistical, security, quality control, and similar purposes (including in aggregate form, e.g., to analyze systems performance).
9. Your Limited Rights. The Solution is licensed (not sold) to end users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by QOMPLX (and, if applicable, your Organization) to access and use the Solution, you may use any such portion of the Solution to which we provide you access under this Agreement, solely for use in accordance with this Agreement. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the Solution.
10. QOMPLX’s Proprietary Rights. We and our suppliers own the Solution, which is protected by proprietary rights and laws. As between you and us, the Solution and all non-public information and materials (technical, business and otherwise) related to the Solution (and the use of it), including Submissions of other Solution users and any reports generated by using the Solution, are our “ Confidential Information” and you will not use or disclose to third parties Confidential Information, except to the extent necessary to exercise your rights and fulfill your obligations under this Agreement or as required by applicable law. Our trade names, trademarks, and service marks include the name “QOMPLX,” “QOMPLX OS,” and any associated logos, marks, and designs. All trade names, trademarks, service marks, logos, and designs on the Solution not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks, logos, or designs in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Solution should be construed as granting any right to use any trade names, trademarks, service marks, logos, or designs without the express prior written consent of the owner.
11. Third Party Materials; Links. Certain Solution functionality may make available access to information, products, services, and other materials made available by third parties, including Submissions (“ Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route, and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness, or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading, or deceptive. Nothing in this Agreement will be deemed to be a representation or warranty by QOMPLX with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Solution at any time. In addition, the availability of any Third Party Materials through the Solution does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider. YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS, AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
12. Open Source. The Solution may include open source components, which are licensed for use and distribution by us under applicable open source licenses. Use of these open source components is governed by and subject to the terms and conditions of the applicable open source license.
13. Disclaimer of Warranties. The Solution (including any information and materials made available to you in connection with using the Solution) is not for any third party’s use or benefit. To the fullest extent permitted under applicable law: (a) the Solution and any products, services, and Third Party Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied, or statutory; and (b) QOMPLX disclaims all warranties with respect to the Solution and any products, services, and Third Party Materials, including the warranties of merchantability, fitness for a particular purpose, non-infringement, and title. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both QOMPLX and QOMPLX Beneficiaries and their respective partners, principals, directors, officers, employees, agents, representatives, licensors, suppliers, and service providers (collectively, the “ Affiliated Entities”), and their respective successors and assigns.
While we try to maintain the timeliness, integrity, and security of the Solution, we do not guarantee that the Solution is or will remain updated, complete, accurate, correct, or secure, or that access to the Solution will be uninterrupted. The Solution may include inaccuracies, errors, and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Solution. If you become aware of any such alteration, contact us at firstname.lastname@example.org with a description of such alteration and its location with respect to the Solution.
14. Limitation of Liability. To the fullest extent permitted under applicable law: (a) QOMPLX will not be liable for any indirect, incidental, consequential, special, exemplary, or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for loss of profits, use, or data, loss of other intangibles, loss of security of Submissions (including unauthorized interception by third parties of any Submissions), even if advised in advance of the possibility of such damages or losses; (b) without limiting the foregoing, QOMPLX will not be liable for damages of any kind resulting from your use of or inability to use the Solution or from any products, services, or Third Party Materials, including from any Virus that may be transmitted in connection therewith; (c) your sole and exclusive remedy for dissatisfaction with the Solution or any products, services, or Third Party Materials is to stop using the Solution; and (d) the maximum aggregate liability of QOMPLX for all damages, losses, and causes of action, whether in contract, tort (including negligence) or otherwise, will be the greater of one hundred dollars ($100) and the total amount, if any, paid by you to QOMPLX to use the Solution during the twelve (12) month period prior to the claim. All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both QOMPLX and the Affiliated Entities, and their respective successors and assigns.
15. Termination. This Agreement is effective until terminated. QOMPLX may immediately terminate this Agreement without penalty or liability if continuing to perform under this Agreement could, in QOMPLX’s sole and absolute judgment, result in QOMPLX’s non-compliance with any applicable law, rule, or regulation, in each case as in effect from time to time. QOMPLX may terminate or suspend your use of the Solution at any time and without prior notice, for any reason, including if QOMPLX believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension (or any termination of this Agreement), your right to use the Solution will immediately cease, and QOMPLX may, without liability to you or any third party, immediately deactivate or delete your user name, password, and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 2 through 8 and 10 through 19 will survive any termination of this Agreement.
16. Governing Law; Arbitration. This Agreement, and any dispute relating to this Agreement or the subject matter of this Agreement, will be governed by and construed, interpreted, and enforced in accordance with the laws of the Commonwealth of Virginia (but expressly excluding the Uniform Computer Information Transactions Act (“ UCITA”) as enacted in Virginia) without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the Commonwealth of Virginia (excluding UCITA) and regardless of your location. The parties expressly disclaim the applicability of, and waive any rights based on, the Uniform Computer Information Transactions Act, the Uniform Commercial Code, or the United Nations Convention on Contracts for the International Sale of Goods, however each may be codified or amended. All disputes arising out of or related to this Agreement or the subject matter of this Agreement (including the Solution and the use thereof) or any aspect of the relationship between you and QOMPLX under this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, will be resolved through final and binding arbitration before a neutral panel of three arbitrators instead of in a court by a judge or jury and you agree that QOMPLX and you are each waiving the right to trial by a jury. You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action.
Notwithstanding the foregoing, nothing in this Agreement will preclude either party from seeking equitable relief in a court having jurisdiction. The arbitration will be conducted in accordance with the Rules for Non-Administered Arbitration of the International Institute for Conflict Prevention and Resolution then in effect (“CPR Rules”). The arbitration will be conducted before a panel of three arbitrators selected using the screened process provided for in the CPR Rules. The arbitration panel will have no power to award non-monetary or equitable relief of any sort, or to award damages inconsistent with this Agreement (including Section 14). Judgment on any arbitration award may be entered in any court having jurisdiction. All aspects of the arbitration will be treated as confidential. You acknowledge and agree that any demand for arbitration must be issued within one (1) year from the date that you became aware or should reasonably have become aware of the facts that give rise to QOMPLX’s alleged liability and in any event no later than two (2) years after the cause of action accrued.
17. Information or Complaints. If you have a question or complaint regarding the Solution, please send an e-mail to email@example.com . You may also contact us by writing to QOMPLX, 11091 Sunset Hills Rd, Reston, VA 20190, or by calling us at 703-995-4199. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
18. Trade Control Laws. The Solution may be subject to applicable export control laws and economic sanctions, including those of the United States and other relevant jurisdictions (“Trade Control Laws”). You agree to comply with all applicable Trade Control Laws and you represent, warrant, and covenant as follows: (a) you will not use the Solution except as authorized by applicable Trade Control Laws; (b) you are not located or ordinarily resident in any country subject to comprehensive U.S. economic sanctions (currently, Cuba, Iran, North Korea, Sudan, Syria, and Crimea (region of Ukraine) (“Sanctioned Countries”)); (c) you will not access or otherwise use the Solution from or on behalf of any Sanctioned Country; (d) you are not and are not acting on behalf of a person or entity on any U.S. Government or other applicable restricted party lists; (e) you will not use the Solution for any end-uses restricted by the U.S. Government; and (f) you will not use the Solution to store or transfer any data subject to the International Traffic in Arms Regulations or subject to the Export Administration Regulations and controlled at a level other than EAR99/AT.
19. Miscellaneous. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and QOMPLX. If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer, or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption, or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and QOMPLX relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and QOMPLX relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting through the Solution or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. QOMPLX will not be responsible for any failure to fulfill any obligation due to any cause beyond its reasonable control, including but not limited to storms, earthquakes, and other acts of God, acts of governments, riots, uprisings, sabotage, and your own negligent acts and omissions.