Terms of Service
LAST UPDATE: OCTOBER 3, 2022
1. Acceptance of Terms
Your Use of the Website shall be deemed to constitute your consent to be bound by this Agreement and shall be enforceable in the same way as if you had signed this Agreement.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE WEBSITE, DO NOT ORDER, AND DO NOT USE ANY QBENCH PRODUCT OR SERVICE.
THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY “CLAIM” (AS SUCH TERM IS DEFINED HEREIN) TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, THE SECTION BELOW ENTITLED “PRE-DISPUTE, MANDATORY BINDING ARBITRATION, AND CLASS ACTION WAIVER” DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THE ARBITRATION AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION.
The Company only offers accounts on behalf of business entities and does not offer personal accounts on behalf of individuals. You represent and agree that (i) you are entering into this agreement on behalf of the company or other legal entity (collectively, the “Business User”) that you may specify, (ii) that your account is for, and held in the name of, the Business User (and not any individual), (iii) such Business User has full legal capacity and is in good standing in the jurisdiction in which it is formed, (iv) you have full legal capacity and authority to bind yourself individually and such Business User to these TOS, and (iv) the terms 'you' or 'your,” as used herein shall, unless the context otherwise reasonably requires, refer to both (A) such Business User, and (B) the individual or individuals (the “Individual User(s)”) accessing or using the Service as authorized or invited by such Business User; provided, however, that each such Individual User(s) shall remain vicariously liable and be required to comply with these TOS even though the account may be held in the name of the Business User. If you do not meet the requirements above, or if you do not agree with these terms and conditions, you may not use the Service.
You also understand and agree that the Service may include certain communications from QBench, such as service announcements and administrative messages, and that these communications are considered part of QBench subscription and that you will not be able to opt out of receiving them. Changes and features that augment or enhance the current Service shall be subject to the TOS. You understand and agree that the Service is provided 'as is' and that the Company assumes no responsibility for the timeliness, deletion, mis-delivery of or failure to store any user content or settings. You are responsible for obtaining access to the Service, which access may involve third-party fees (such as Internet Service Provider charges). You are responsible for those fees, including fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
You may not access the Service for purposes of monitoring its performance, availability, or functionality, or for any other benchmarking or competitive purposes, without the Company’s prior written consent. You may not access the Service if you are a direct competitor of the Company, except with the Company’s prior written consent.
2. Your Account
In consideration of your use of the Service, you represent and warrant that (i) you are not barred from receiving services under the laws of the United States or any other applicable jurisdiction, (ii) your use of the Service does not violate any applicable law or regulation, and (iii) you access the Service through one or more humans. Accounts registered by 'bots' or other automated methods are not permitted. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form ('Registration Data'); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
You will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify the Company of any unauthorized use of your password or account or any other breach of security; and (b) ensure that you exit from your account at the end of each session. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with the TOS, including, without limitation, this section.
3. Professional Services
If you have purchased Professional Services (an Implementation Level, Tier, Package, Professional Services hours, or similar), you and the Company will abide by the respective terms found in a Scope of Work (SOW) document and this agreement. The Company will perform the work as described in a signed SOW, collectively referred to as “Professional Services” or “PS”, using commercially reasonable efforts. Any time and cost estimates detailed in an SOW are not absolute and are only estimates, and actual timelines and costs may vary. Work performed as part of PS is considered work-for-hire and is provided as-is, and as such is not subject to any service level guarantee, guaranteed uptime, and is not monitored or tested for ongoing suitability, fitness, function, performance, or correctness. The Company shall not be liable in connection with PS work performed in any way, including an inability to complete the work in accordance with the time or cost estimates or the suitability of the work. In the event there is information or cooperation from you or a third party needed to complete the PS work, the work may be delayed, halted, or terminated. The PS work may also be delayed, halted, or terminated in the case of nonpayment. Except and to the extent required by applicable law, fees paid for PS work, whether paid upfront or not, are nonrefundable. Any hours purchased and not used are also nonrefundable. For PS work being completed on a Time and Materials (TM) basis, you may opt to pay the work on a monthly basis. The Company may offer PS services at either fixed bids or on a TM basis at the Company’s sole discretion. If you request a change to the initially agreed upon SOW, a new SOW may be generated, or a Change Order may be issued, with updated costs and timelines.
We will begin billing you for subscription fees corresponding to your subscription plan, plus any applicable tax, upon your purchase of the Services.
Unless canceled, your Service subscription will be automatically renewed at the end of your subscription period. We will bill the subscription fee plus any applicable tax to you. Your subscription will automatically renew for successive subscriptions, without prior notice to you, unless and until you cancel your subscription, or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next period's subscription fees to your payment method.
By using the Service, you are expressly agreeing that we are permitted to bill you a subscription fee, any applicable tax and any other charges you may incur in connection with your use of the Service. Additional charges may include service level changes you request. The subscription fee will be billed at the beginning of your subscription and on each renewal thereafter, unless and until you cancel your subscription. We will automatically bill you each billing period on the calendar day corresponding to the commencement of your subscription. Except and to the extent required by applicable law, all fees and charges are nonrefundable, and there are no refunds or credits for partially used periods, or where you have elected to downgrade service levels or otherwise remove any paid component or feature. If you elect to upgrade your service level or otherwise add any paid component or feature (including additional users), we will prorate the amount due based on the number of days remaining in your billing cycle; provided, however, that any such proration shall be based on your service level or paid components or features in existence immediately prior to your election to upgrade or add paid components or features.
If you change your service level (downgrade it), you may cause the loss of Content or features for your account. The Company does not accept any liability for such loss. You may cancel your subscription to the Service at any time, and cancellation will be effective immediately. Except and to the extent required by applicable law, WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIODS OR ANY FEATURE OR COMPONENT THAT YOU HAVE PAID FOR BUT NOT USED.
In connection with your purchase and/or use of the Service you may be subject to taxes, including, without limitation, sales and use taxes, by any authority which has jurisdiction to impose such taxes. You agree that the obligation and payment of any such taxes shall be your sole and absolute responsibility, and you agree, that unless otherwise required by applicable law, to indemnify the Company pursuant to the section below entitled “Indemnity” to the extent that the Company incurs any obligations or other liabilities in connection with such taxes.
In the event that Licensee makes any payment via wire transfer, all associated outgoing and incoming bank fees (including, without limitation, Licensee’s bank fees and the Company’s bank fees) (collectively, the “Bank Fees”) shall be Licensee’s responsibility and shall be recoverable by the Company from Licensee. Licensee may include such Bank Fees at the time of the payment to the Company. However, if such Bank Fees are not included then the Company shall be entitled to full reimbursement of such Bank Fees from Licensee within 60 days of any applicable wire transfer initiated by Licensee.
Fee Increases: We may change the fees and charges in effect or add new fees and charges from time to time. Furthermore, notwithstanding any other provision contained herein (but subject to any applicable law), at the time of any renewal of your subscription you agree that we may increase your recurring fees up to the greater of (i) the then list price as publicly marketed on our website, (ii) in line with inflation as measured by the Consumer Price Index, or (iIi) five percent (5%). We may, in our sole discretion, offer you a grace-period in which your fees will not increase for a certain period of time. If you do not accept the increase or addition to the existing fees, you may elect to terminate your account during the then current billing period and you shall not be liable for such fee increase after the applicable billing period; however, any later renewal of service will be subject to the increased fee structure. If your credit or debit card reaches its expiration date, your continued use of the Service constitutes your authorization for us to continue billing you, and you remain responsible for any uncollected amounts.
5. Travel & Expenses
The Company is hereby authorized to incur, with prior notice to you, reasonable travel expenses when appropriate in performing your instructions. You agree to reimburse these in addition to the subscription fee. Reasonable travel expenses vary to reflect the different standards applied to business travel in various parts of the world. For illustrative purposes, they include, economy (or 'coach') class flights, accommodation and incidental costs within a hotel, meals while traveling on your behalf, rail travel and taxis and car-hire costs as appropriate. Where appropriate to the circumstances, the Company reserves the right to vary the class of travel to meet a reasonable business need.
“Content” means any and all information, data, code, video, images, text, documents or other materials of any type that is uploaded, emailed, transmitted, submitted or otherwise made available to or through the Service by you or any of your Individual Users, regardless of whether it is publicly posted or privately transmitted. All Content is the sole responsibility of the person from whom such Content originated. This means that you, and not the Company, are entirely responsible for all Content that you upload, email, transmit, submit or otherwise make available via the Service. The Company does not control the Content posted via the Service and does not have access to such Content (except account-related information, unless authorized by you, or to provide technical or engineering support to you). As such, the Company does not and cannot guarantee or endorse the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent, objectionable or illegal in your jurisdiction. Under no circumstances will the Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content uploaded, emailed, transmitted, submitted or otherwise made available via the Service.
You acknowledge that the Company does not pre-screen Content, but that the Company and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, move, or remove any Content that is available via the Service. Without limiting the foregoing, the Company and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable or illegal as determined in the Company’s sole discretion. In no event shall the Company or its designees have any liability or obligation to you in connection with exercising any rights contained in this section. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by the Company or submitted to the Company.
You acknowledge, consent and agree that the Company may access, preserve and disclose your account information and Content if required to do so by any applicable law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any applicable legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of the Company, its users and the public. If we receive a subpoena which requests disclosure of information contained in your account, you agree that we may disclose any such requested information contained in the account, without notifying you if necessary to lawfully comply, regardless of whether such information is deemed to be owned or held in the name of (i) the Business User, or (ii) the name of Individual Users. For the sake of clarity, (i) if the subpoena is issued in the name of the Business User, we may disclose information regarding both the Business User and the Individual User(s), and (ii) if the subpoena is issued in the name of Individual User(s) we may disclose information regarding both the Business User and the Individual Users(s).
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
You will retain all right, title and interest in and to your Content and the Company shall not claim ownership of your Content; provided, however, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant the Company, so that we may provide you the Service, the following worldwide, royalty-free and non-exclusive license(s): the perpetual, irrevocable and fully sublicensable license to collect, use, store, transmit, distribute, reproduce, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.
All QBench users may submit support requests (i) Submitting a support ticket via QBench Inc. ticketing service (ii) sending an email to email@example.com ('Maintenance Notice'). This may be changed from time to time and the client will be notified in advance if any submission channel is edited or removed. QBench Inc. shall use reasonable efforts to respond to general Maintenance Notices received during Normal Business Hours within 8 hours. Urgent Maintenance Notices will generally be responded to within 2 hours.
QBench support is available on weekdays from 8:00 AM to 5:00 PM PST, except for (a) federal holidays, (b) planned downtime, (c) unavailability caused by circumstances beyond QBench’s reasonable control, Internet service provider failures or delays, denial of service attacks, or (d) as necessary to update the Service to ensure its security and integrity.
Upon identification of any error, the Client shall notify QBench Inc. and provide QBench Inc. with enough information to locate and reproduce the error. To assist QBench Inc. in delivery of our support services, Client shall submit to QBench Inc. a listing of outputs and all other data which QBench Inc. may reasonably request in order to reproduce the operating conditions similar to those present when the error was discovered.
Users are responsible for all content submitted to QBench support. Users submitting support requests should NOT include any ePHI, passwords, or any other sensitive information. QBench support agents may ask for user’s support PIN (found in the user account dropdown in QBench) to verify the user’s identity, but will never ask for user passwords. Support services are generally provided in the English language, though QBench may be able to accommodate certain non-English requests at QBench’s sole discretion.
- You agree to not use the Service to: upload, email, transmit, submit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, under any applicable laws;
- harm minors in any way;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- disguise the origin of any Content transmitted through the Service;
- upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any applicable law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any Content that infringes any rights of any other party, including, without limitation, patent, trademark, trade secret, copyright or other proprietary rights;
- engage in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, the Do-Not-Call Implementation Act, the Telemarketing Sales Rule, 47 C.F.R. §64.1200 et seq., or other state or local laws relating to calling or texting (collectively, the “Calling Laws”);
- upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- act in a manner that negatively affects other users' ability to use the Service;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, state, national or international law;
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
- reassign the license between uniquely identified individuals frequently so as to effectively enable the sharing of a single Software license. Subscriptions to Software are intended for the use of uniquely identified individuals. However, usage as described above would be a violation of the Company’s Terms of Service.
- reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service unless you otherwise have an agreement with us which specifically grants you such right(s).
8. International Use
Recognizing the global nature of the Internet, you agree to comply with any and all applicable local, state, national or international laws and regulations regarding online conduct, acceptable Content and use of the Service. Specifically, you also agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country or jurisdiction in which you reside.
Except and to the extent required by applicable law, You (specifically including the Business User and Individual User(s)) agree to indemnify and hold the Company and its parent, subsidiaries, affiliates, officers, directors, stockholders, agents, attorneys, employees, partners, licensors and other representatives harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of, or in connection with, (i) your Content, (ii) your use or access of the Service, (iii) your connection to the Service, (iv) your violation of the TOS or applicable law, (v) your violation of any rights of another, and (vi) any taxes arising in connection with your purchase or use of the Service in any jurisdiction, domestic or otherwise, including, without limitation, sales and use tax.
10. General Practices Regarding Use and Storage
You acknowledge that the Company may establish general practices and limits concerning use of the Service, including without limitation the maximum number of email messages that may be sent from or received by an account on the Service, the maximum size of any email message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on the Company’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that the Company has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by the Service. You further acknowledge that the Company reserves the right to modify these general practices and limits from time to time.
11. Modifications to Service
The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
12. Termination and Cancellation
You agree that the Company may, with 60 days’ prior notice, or immediately in the event of non-payment or other breach by you of this agreement, terminate your QBench account and access to the Service (both as a Business User and/or Individual User(s)). Such termination may be made in the Company's sole and absolute discretion with or without cause. For illustrative purposes only, the situations in which the Company may terminate your account and access to the Service shall include, but not be limited to: (a) breaches or violations of the TOS or other incorporated agreements or guidelines; (b) requests by law enforcement or other government agencies; (c) a request by you (self-initiated account deletions): (d) discontinuance or material modification to the Service (or any part thereof): (e) unexpected technical or security issues or problems; (f) extended periods of inactivity; (g) engagement by you in fraudulent or illegal activities; (h) harassment or abusive behavior by you towards employees of the Company; and/or (i) nonpayment of any fees owed by you in connection with the Service. Further, you agree that all terminations for cause shall be made in the Company's sole and absolute discretion and that the Company shall not be liable to you or any third party for any termination of your account, or access to the Service.
13. QBench Inc.’s Proprietary Rights
You acknowledge and agree that the Service and any necessary software used in connection with the Service ('Software') contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by the Company, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
The Company grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on your computing devices, subject to the terms and conditions of this Agreement. You shall not (and shall not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by the Company for use in accessing the Service.
14. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- EXCEPT AS SPECIFICALLY SET FORTH HEREIN, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW: (i) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, (ii) THE SERVICE IS PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS, AND (iii) THE COMPANY AND ITS PARENT,SUBSIDIARIES, AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, ATTORNEYS, PARTNERS, LICENSORS, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “WRITE PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- THE COMPANY PARTIES MAKE NO WARRANTY THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OR RESULTS OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ERRORS OR DEFECTS, IF ANY, IN THE SOFTWARE WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL AND/OR DATA. YOUR USE OF THE WEBSITE IS SUBJECT TO ADDITIONAL DISCLAIMERS AND CAVEATS THAT MAY APPEAR THROUGHOUT THE WEBSITE.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY PARTIES OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. THE COMPANY PARTIES ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THE WEBSITE. WHILE THE COMPANY STRIVES TO KEEP THE INFORMATION ON THE WEBSITE ACCURATE, COMPLETE, AND UP-TO-DATE, THE COMPANY PARTIES CANNOT GUARANTEE, AND WILL NOT BE RESPONSIBLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION ON THE WEBSITE.
15. Limitation of Liability
EXCEPT AND TO THE EXTENT REQUIRED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY AND ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS, PARTNERS, LICENSORS AND OTHER REPRESENTATIVES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY'S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE COMPANY FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (ii) $100.
16. Exclusions and Limitations
SOME JURISDICTIONS (INCLUDING, WITHOUT LIMITATION, NEW JERSEY), MAY NOT ALLOW FOR (I) INDEMNIFICATION, AND (II) THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY (INCLUDING, WITHOUT LIMITATION, INCIDENTAL OR CONSEQUENTIAL DAMAGES). ACCORDINGLY, SOME OF THE PROVISIONS CONTAINED HEREIN (INCLUDING INDEMNIFICATION UNDER SECTION 4 AND THE LIMITATIONS CONTAINED IN SECTION 10) MAY NOT APPLY TO YOU. IF YOU ARE UNSURE WHETHER SUCH EXCLUSIONS AND LIMITATIONS APPLY THE COMPANY ENCOURAGES YOU TO SEEK LEGAL COUNSEL IN YOUR JURISDICTION.
17. Trademark Information
The QBench logo trademarks and service marks and other QBench logos and product and service names are trademarks of the Company.
18. Export Law Assurances
You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which QBench was obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed or export restricted countries (currently Crimea - Region of Ukraine, Cuba, Iran, North Korea, Sudan, and Syria) (b) to a national or resident of, or person organized under the laws of a country described in (a), or (c) to anyone who is the target or subject of U.S. or other applicable economic sanctions or export control restrictions, or is owned or controlled by such persons, including anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List or Unverified List or Blocked Persons List or Debarred List or Nonproliferation Sanctions List (such a person described under (b) or (c), hereinafter, a “Sanctioned Person”) . By using the Service, you represent and warrant that you are not a Sanctioned Person. If you are, or the Company has reasonable grounds to believe you are, a Sanctioned Person, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
19. Pre-Dispute, Mandatory Binding Arbitration, and Class Action Waiver
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
General Information: Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, the Company Parties, and/or any involved third party relating to your account, Your Use, your relationship with the Company Parties, or these TOS. This includes any and all claims that relate in any way to your use of the products and services, your attempted use of the products and services, and any act or omission by the Company Parties or any third party related to your use or attempted use of the products and services. You, the Company, the other Company Parties, or any involved third party may pursue a Claim. The Company agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against the Company. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.
Exceptions to Binding Arbitration: As an exception to binding arbitration, you and the Company both retain the right to pursue, in a small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. The Company will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
Mandatory Pre-Dispute Procedures: You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against the Company Parties, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information or representations related to our products and upon which you rely. You may send the written description by U.S. Mail to QBench Inc., 651 N Broad St Ste 205 #9182 Middletown, DE 19709; Attn: General Counsel. You agree to negotiate with the Company in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after the Company’s receipt of your written dispute, you agree to the dispute resolution provisions below.
Commencement of Arbitration: You and the Company agree to commence any arbitration proceeding within 1 year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred.
Arbitration Location:For your convenience, the arbitration may be conducted in the federal district where you reside. It may be held by telephone or through written submissions if both you and the Company agree.
Sponsoring Organization, Rules and the Arbitrator: You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen from JAMS Comprehensive Arbitration Rules and Procedures and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal.
The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these TOS and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you, the Company or the other Company Parties.
Arbitration Fees: the Company shall pay for all filing, administrative, and arbitrator fees for an arbitration initiated by either party. The parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
Arbitration Award: The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Although the Company may have a right to an award of attorneys’ fees and expenses under some laws if it prevails, the Company agrees that it will not seek such an award, unless your Claims are determined by the arbitrator to be frivolous. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final, subject to appeal under the FAA.
Enforceability: This provision survives termination of your account or relationship with the Company, bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
Miscellaneous: Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. This provision is the entire arbitration agreement between you and the Company and shall not be modified except in writing by the Company.
Amendments: The Company reserves the right to amend this arbitration provision at any time. Your continued use of any of the Company’s websites, purchase of a QBench product or service, or use or attempted use of a QBench product or service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, the Company will provide you notice and an opportunity to opt-out. Your continued use of any QBench website, purchase of a QBench product or service, or use or attempted use of a QBench product or service, is affirmation of your consent to such material changes.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF PURCHASE, USE, OR ATTEMPTED USE OF A QBENCH PRODUCT OR SERVICE ( WHICHEVER COMES FIRST) BY WRITING TO QBENCH INC., 651 N BROAD ST STE 205 #9182 MIDDLETOWN, DE 19709; ATTN: GENERAL COUNSEL. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY QBENCH PRODUCT OR SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE OF QBENCH PRODUCT OR SERVICE. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.
20. Exclusive Venue for Other Controversies
You agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the state and federal courts located within the County of Sacramento, State of California, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
21. General Information
Entire Agreement: The TOS constitute the entire agreement between you and the Company and govern your use of the Service, superseding any prior agreements between you and the Company with respect to the Service (unless that is a written Master Services Agreement or SaaS Services Agreement or a separate written Business Associate Agreement). You also may be subject to additional terms and conditions that may apply when you use or purchase certain other QBench services, affiliate services, third-party content or third-party software.
Choice of Law and Forum: Except to the extent required by applicable law or as otherwise set forth herein (including the arbitration provisions set forth above), (i) the TOS and the relationship between you and the Company shall be governed by the laws of the State of California without regard to its conflict of law provisions, and (ii) You and the Company agree to submit to the personal and exclusive jurisdiction of the courts located within the County of Sacramento, State of California regardless of (A) your world-wide physical location, or (B) the jurisdiction where you purchased or use the Service.
Waiver and Severability of Terms: The failure of the Company to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid under applicable law, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions to the greatest extent possible as reflected in the provision, and the other provisions of the TOS shall remain in full force and effect.
No Right of Survivorship and Non-Transferability: You agree that your QBench account is non-transferable and any rights to your QBench login or contents within your account terminate upon cessation of your legal existence or death, as applicable. Upon receipt of a copy of a certificate of dissolution or death certificate, as applicable, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the TOS are for convenience only and have no legal or contractual effect.