QUOTAPATH LICENSE AND TERMS OF USE

Last Updated: September 26, 2018

PLEASE READ THIS LICENSE AND TERMS OF USE (TOGETHER, THE “AGREEMENT”) CAREFULLY BEFORE USING THE QUOTAPATHSM SOFTWARE-AS-A-SERVICE APPLICATION (TOGETHER WITH ANY UPDATES, MODIFICATIONS, CUSTOMIZATIONS, CORRECTIONS OR ENHANCEMENTS THAT BECOME PART OF SUCH APPLICATION, RELATED DOCUMENTATION, AND ALL OTHER RELATED SERVICES, THE “QUOTAPATH SERVICES”). THIS AGREEMENT FORMS A LEGALLY BINDING AGREEMENT BETWEEN YOU (OR, IF APPLICABLE, THE BUSINESS OR EMPLOYER ON WHOSE BEHALF YOU WISH TO USE THE QUOTAPATH SERVICES) (IN EITHER CASE, “CUSTOMER” OR “YOU”) AND QUOTAPATH INC., A DELAWARE CORPORATION (THE “COMPANY,” “WE,” OR “OUR”).  BY CLICKING ON “I AGREE,” “I ACCEPT” OR AN EQUIVALENT MESSAGE, OR BY ACTIVATING OR USING THE QUOTAPATH SERVICES, YOU ACCEPT THE TERMS OF THIS LICENSE AND TERMS OF USE WITHOUT MODIFICATION AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT ACCEPT THE TERMS OF THIS LICENSE AND TERMS OF USE, YOU MAY NOT ACTIVATE OR USE THE QUOTAPATH SERVICES.

THE INDIVIDUAL ACCEPTING THIS LICENSE AND TERMS OF USE ON BEHALF OF CUSTOMER (WHETHER ON BEHALF OF HIM/HERSELF AS CUSTOMER OR ON BEHALF OF A CUSTOMER THAT IS A BUSINESS ENTITY) REPRESENTS AND WARRANTS TO COMPANY THAT HE OR SHE (i) IS AT LEAST 18 YEARS OF AGE, AND (ii) HAS ALL REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND TO BIND CUSTOMER TO THE TERMS HEREOF.

 

  1. License Grant, Restrictions, Use of Services; Payment and Fees
    1. License.  Subject to the terms and limitations set forth in this Agreement, the Company hereby grants Customer a limited, revocable, non-transferable, non-sublicensable license to access and use the QuotaPath Services solely for its internal, personal business purposes and for no other purpose. Customer shall be responsible for its own acts and omissions as well as for all acts and omissions of persons who use the QuotaPath Services via Customer’s account (each, a “User”) and for ensuring their compliance with this Agreement. Customer and Users may not share Customer’s password with any other person or third party. Customer shall immediately notify the Company of any loss or unauthorized access, disclosure, or use of a personal User ID or password.
    2. Payment and Fees. The Company does not currently charge to sign up and use the QuotaPath Services. If that changes, we will notify you at the email address associated with your account and you will be given an opportunity to transition to a paid version of the QuotaPath Services. If you do not agree to the charges at such time, either party may terminate your access to the QuotaPath Services (along with this Agreement) upon providing written notice, or QuotaPath may disable your access to the QuotaPath Services.   
    3. Restrictions.
      1. No Service Bureau Use. Customer may use the QuotaPath Services only for its internal organizational purposes and may not provide outsourcing, service bureau, application service provider or similar services to third parties.
      2. Restricted Rights. The QuotaPath Services and any related information are commercial computer software and commercial computer software documentation, and, as specified in FAR 12.212 or DFARS 227.7202, and their successors, as applicable, the U.S. federal government’s rights to use, reproduce or disclose such software, documentation and other information are restricted in accordance with the terms and conditions of this Agreement. Use, duplication or disclosure by the U.S. federal government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
      3. Use of the QuotaPath Services and permission to create a QuotaPath account are not currently available for individuals or entities in the European economic area or Switzerland (collectively, the “EU”). If the Company expands its offerings to individuals in the EU, the Company will revise this Agreement to reflect such change.
    4. Reservation of Rights. All rights not expressly granted to Customer are reserved by the Company. Customer shall have no rights to receive any source or object code for the QuotaPath Services, nor use the QuotaPath Services except as expressly set forth in this Agreement.
    5. Intended Use. Customer acknowledges that the QuotaPath Services are intended solely for managing and tracking sales and commission earnings and related information, and for no other purpose. Customer shall not submit any production data to the QuotaPath Services or any confidential or sensitive information, such as personally identifiable health or consumer financial information. The Company shall have no liability whatsoever for any injuries, losses or damages arising from the use of the QuotaPath Services, or any components or modifications thereof, for any other purpose.    
    6. Access and Use. Customer agrees to follow any policies made available within QuotaPath Services. You may not misuse QuotaPath Services. For example, don’t interfere with QuotaPath Services, try to access them using a method other than the interface and the instructions that we provide, or engage in any “scraping,” that is, extensively or automatically copy any content from QuotaPath Services. You may use our Services only as permitted by law, including, without limitation, applicable export and re-export control laws and regulations. We may suspend or stop providing QuotaPath Services to you for any reason, including for non-compliance with our terms or policies or if we are investigating suspected misconduct.
    7. Messages. In connection with your use of the QuotaPath Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications, for example, by clicking on the “unsubscribe” link in marketing e-mails.  Please be aware that there may be a brief period before we are able to process your opt-out, but we will always respect your legal rights to opt out of receiving unwanted messages. By consenting to this Agreement, you consent, on behalf of yourself and your Users, if any, to the receipt of marketing emails from QuotaPath, and emails from QuotaPath concerning updates to your account, service announcements, administrative messages, and other information.
    8. Modifying and Terminating QuotaPath Services. We are constantly changing and improving the QuotaPath Services. We may add or remove functionalities or features, and we may suspend or stop a part or all of the QuotaPath Services altogether. You can stop using the QuotaPath Services at any time, although we’ll be sorry to see you go. We may also stop providing the QuotaPath Services to you, or add or create new limits to the QuotaPath Services, at any time. 
  2. Company Rights in the QuotaPath Services

The QuotaPath Services furnished under this Agreement are licensed, not sold, to Customer.  The Company possesses all right, title and interest in and to the QuotaPath Services and any copyrights, patents, trademarks, service marks, trade names, trade dress, trade secrets and any other proprietary rights that are associated with the QuotaPath Services throughout the world, and Customer acknowledges that it receives no right, title or interest to the QuotaPath Services except for the limited rights provided within this Agreement.  The Company also retains title to any and all copies made of any embodiments or features of the QuotaPath Services, and upon any termination of this Agreement, all such copies must be returned to the Company or destroyed, at the Company’s instruction. You may not copy (other than to print out screens from your user account within the QuotaPath Services by using the print functionality provided within the QuotaPath Services, subject to all license restrictions in Section 1.1, above), modify, distribute, sell, or lease any part of QuotaPath Services or their associated software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission, for example, if we make software available under an open source license.

Customer agrees not to contest the Company’s title and intellectual property rights in or to the QuotaPath Services.  

All discoveries, developments, techniques, advice, feedback, suggestions, improvements and similar information developed or provided as a result of Customer’s access to the QuotaPath Services (“Feedback”) shall be the sole property of the Company, and Customer hereby assign to the Company Customer’s entire right, title, and interest in and to any such Feedback.  The Company shall be the sole owner of all patents, copyrights, and other rights arising therefrom or in connection therewith, and may freely use, sell and exploit the Feedback without the consent of Customer or any obligation to render an accounting or share profits or royalties.

  1. Privacy Policy

Customer, on behalf of itself and the Users, consents to such privacy policy as is posted through the QuotaPath Services and/or on the Company’s website from time to time (the “Privacy Policy”) and agrees that information collected from Users will be treated by the Company in accordance with the Privacy Policy, which is hereby incorporated by reference in the Agreement. By using QuotaPath Services, you agree that we can collect, use and share data from you as described in our Privacy Policy.  In the event of any conflict or inconsistency between the Privacy Policy and the terms of this Section 3 or 2, the terms of Section 3 or 2 shall control as between Customer and the Company. Without limiting any of the foregoing, and notwithstanding anything in this Agreement to the contrary, the Company may use metrics from implementation of the QuotaPath Services (such as performance data) internally to improve the Company’s products and may aggregate such metrics with other customers’ metrics and may use and disclose the aggregated, non-customer-specific metrics in the form of industry metrics.

  1. Content You Submit

Some of QuotaPath Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

When you upload or otherwise submit content to QuotaPath Services, you give the Company (and those we work with) a royalty-free, worldwide license to use, host, store, reproduce, modify, create derivative works (including changes we make at your request or so that your content works better with QuotaPath Services), communicate, publish, and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving the QuotaPath Services, and to develop new ones. This license continues even if you stop using the QuotaPath Services.  Make sure you have the necessary rights to grant us this license for any data or content that you submit to QuotaPath Services.

 

  1. Intellectual Property Protection

As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others, and require our users and customers to do so.  If you are a copyright owner or its agent and believe that any content residing on or accessible through the QuotaPath Services infringes upon your copyrights, you may submit a notification under the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (the “Designated Agent”) with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):

  • Identification of the work or material being infringed.
  • Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence.
  • Contact information for the notifying party (the “Notifying Party”), including name, address, telephone number, and email address.
  • A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
  • A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
  • A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.

Please also note that the information provided in a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content. After removing material in response to a valid DMCA notice, we will notify the user responsible for the allegedly infringing material that we have removed or disabled access to the material. We will terminate, under appropriate circumstances, users who are repeat copyright infringers, and we reserve the right, in our sole discretion, to terminate any user for actual or apparent copyright infringement.

If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with us by providing the following information to the Designated Agent at the address below:

  • The specific URLs of material that we have removed or to which we have disabled access.
  • Your name, address, telephone number, and email address.
  • A statement that you consent to the jurisdiction of U.S. District Court for the Eastern District of Pennsylvania, and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person.
  • The following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
  • Your signature.

Upon receipt of a valid counter-notification, we will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material.  If we do not receive any such notification within ten (10) days, we may restore the material to the QuotaPath Services.

The contact information for our Designated Agent is:

 

QuotaPath Inc.

Attention:  Copyright Agent

QuotaPath Inc.

1608 Walnut St. Fl 12,

Philadelphia, PA 19103, U.S.A.

Email:  info@quotapath.com

 

If you believe that any of your intellectual property rights other than copyrights have been infringed, please e-mail us at info@quotapath.com.  We reserve the right, in our sole and absolute discretion, to suspend or terminate any user who infringes the intellectual property rights of the Company or others, and/or to remove, delete, edit or disable access to such person’s content.   You agree that we have no liability for any action taken under this section.]

 

  1. Disclaimers.
    1. No Warranty. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN THESE TERMS, THE QUOTAPATH SERVICES, INCLUDING ANY DOCUMENTATION, ARE PROVIDED “AS IS.” THE COMPANY MAKES, AND CUSTOMER RECEIVES, NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND THE COMPANY SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR UNINTERRUPTED OR ERROR-FREE OPERATION; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR ANY STATUTORY REMEDY. NO STATEMENT, WHETHER MADE BY THE COMPANY’S EMPLOYEES, AGENTS, OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY THE COMPANY FOR ANY PURPOSE OR TO GIVE RISE TO ANY LIABILITY ON THE PART OF THE COMPANY. CUSTOMER’S RECEIPT, USE OF, AND RELIANCE UPON THE QUOTAPATH SERVICES ARE ENTIRELY AT CUSTOMER’S OWN RISK. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND SPECIFICALLY DISCLAIMS, THAT CUSTOMER WILL EARN ANY COMMISSIONS OR OTHER REVENUES (OR EXPERIENCE AN INCREASE IN ANY OF THE FOREGOING) THROUGH USE OF THE QUOTAPATH SERVICES, AND NO ASPECT OF THE QUOTAPATH SERVICES SHALL BE CONSTRUED TO PROVIDE ANY LEGAL ADVICE (INCLUDING, WITHOUT LIMITATION, PERTAINING TO THE VALIDITY AND/OR ENFORCEABILITY OF ANY CONTRACTS PERTAINING TO THE PAYMENT AND EARNING OF COMMISSIONS).  
    2. Customer Warranty. Customer warrants to the Company that: (i) it has the legal power and authority to enter into this Agreement; (ii) Customer and the Users shall at all times comply with any privacy, data security and other laws and regulations applicable to their activities and geographic territory; and (iii) Customer and the Users shall not upload, submit, store, publish, or distribute any unlawful, infringing or libelous content or material using the QuotaPath Services, or any content or material that contains viruses, worms, Trojan horses, malware, or other surreptitious, harmful, or invasive code, or any data or other material that violates any third party proprietary rights or any contractual obligation to a third party (including, without limitation, contractual confidentiality obligations to a third party).  

 

  1. Indemnification.

You hereby agree to indemnify, defend, and hold harmless the Company, its affiliated companies, and their respective directors, officers, employees, agents, representatives, partners, contractors, successors and assigns from and against all claims, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees), resulting from or arising out of (i) your actual or alleged breach of any of your representations, warranties, or obligations under the Agreement; (ii) your use or misuse of the QuotaPath Services; (iii) or any content or data submitted by Users through the QuotaPath Services.  

 

  1. Limitation of Liability.
    1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND OUR AFFILIATES WILL NOT BE RESPONSIBLE FOR LOST PROFITS OR REVENUES,LOSS OF OR INABILITY TO ACCESS DATA, INFORMATION, AND OTHER CONTENT, FINANCIAL LOSSES, OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.

TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF THE COMPANY AND OUR AFFILIATES FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT OR RELATING TO YOUR USE OF THE QUOTAPATH SERVICES IS LIMITED TO, IN THE AGGREGATE, THE GREATER OF (1) THE AMOUNT YOU PAID US TO USE THE SERVICES OR (2) USD $50.

IN ALL CASES, THE COMPANY AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS, NATURAL DISASTERS, ACTS OF GOVERNMENT, ACTS OF THIRD PARTIES, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.

IN ADDITION, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY AND ITS AFFILIATES SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY CLAIMS, LOSSES, DAMAGES, LIABILITIES, OR COSTS OF ANY KIND RELATED TO, RESULTING FROM, OR ARISING FROM CUSTOMER’S USE OF AND/OR RELIANCE UPON THE QUOTAPATH SERVICES (INCLUDING, WITHOUT LIMITATION, ANY REPORTS, DATA, CONTENT, OR INFORMATION OBTAINED THEREFROM).

 

    1. Material Part of Agreement.  Customer agrees that the disclaimer of warranties and limitations of liability in Sections 6, 8, and otherwise present in this Agreement are a material inducement and consideration for the Company to enter into this Agreement and provide the QuotaPath Services.  Accordingly, such provisions shall be enforced as written even if a remedy fails of its essential purpose.
  1. General.
    1. Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed in all respects by the laws of the Commonwealth of Pennsylvania, USA, without giving effect to principles of conflicts of laws. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. Any controversy or dispute arising under or related to this Agreement shall be adjudicated in the state and federal courts in and for Philadelphia, Pennsylvania (including their applicable appellate courts), and each party consents to the exercise of jurisdiction and venue by such courts; provided, however, that QuotaPath may seek temporary or emergency injunctive relief in any court of competent jurisdiction to protect and preserve its rights in its intellectual property.
    2. Notices. All notices or reports shall be in writing and shall be delivered by personal delivery, facsimile transmission, e-mail, overnight mail or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five days after deposit in the mail, or upon acknowledgment or confirmation of delivery of e-mail or facsimile transmission.  Notices to the Company shall be sent to the address set forth in the preamble to this Agreement (or such other address as the Company designates by notice sent pursuant to this paragraph), and shall be addressed to the Company’s CEO with a copy (which shall not constitute notice) to the attention of Andrew Baer, Esq., at Baer Crossey McDemus LLC, 1500 Walnut Street, Suite 501, Philadelphia, PA 19102.  All notices to Customer may be sent to the latest business or e-mail address associated with Customer’s account.
    3. No Agency. The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties in this Agreement.
    4. Waiver. If one party fails to enforce a provision of this Agreement, it shall not be precluded from enforcing the same provision at another time. To be effective any waiver must be in writing and executed by an authorized signatory of the party to be charged with such waiver.  
    5. Severability. If any provision of this Agreement is deemed unenforceable or invalid by law or by a court decision, the provision shall be changed and interpreted if possible to accomplish the intent of the provision within the constraints of the law. Only that provision that is deemed unenforceable or invalid, and not the entire Agreement, shall be invalidated.
    6. Assignment. Customer may not assign this Agreement, in whole or in part, to any third party or agency without the prior written consent of the Company. The Company may assign or delegate this Agreement, in whole or in part, without consent at any time.  The Company may also, without notice, utilize subcontractors and agents to provide aspects of the QuotaPath Services.
    7. Modifications. We may modify these terms or any additional terms that apply to QuotaPath Services at any time. For example, we may make changes or add terms to reflect changes to the law or changes to the QuotaPath Services. You should look at the terms regularly and the “Last Updated” date at the beginning of these terms. We’ll post notice of modified additional terms in the QuotaPath Services, or notify you by email. Changes will not apply retroactively and will become effective no sooner than ten (10) days after they are posted.  However, changes addressing new functions for QuotaPath Services or changes made for legal reasons will be effective immediately unless otherwise provided by the Company. If you do not agree to the modified terms for QuotaPath Services, you should discontinue your use of QuotaPath Services. If there is a conflict between these terms and any additional terms for the QuotaPath Services, the additional terms will control for that conflict.
    8. Entire Agreement. This Agreement supersedes all previous agreements and understandings, whether oral or written, between Customer and the Company with respect to its subject matter. To the extent that any terms set forth in any other terms conflict with the terms set forth in this Agreement, the terms of this Agreement shall control unless otherwise expressly provided for by the Company.
    9. Export Compliance. Regardless of whether Customer is a US-based entity, Customer shall not export or re-export any of the QuotaPath Services (in whole or in part) without QuotaPath’s express prior written consent, and where QuotaPath has provided such consent, shall not export such services to any country without ensuring that such export complies with the Export Administration Regulations of the U.S. Department of Commerce, or any other agency of the U.S. Government, or similar laws governing the export of software or products of any other government having jurisdiction over such export, re-export, or use, pursuant to any applicable statute, regulation, or governmental order.  Customer agrees to remain at all times in full compliance with U.S. Government export policy and regulations and failure of such compliance shall constitute a material breach of this Agreement.

Electronic Execution and Disclosures. Customer acknowledges and agrees that by clicking on the button labeled “I Agree” or “I Accept” or such similar or equivalent buttons, checkboxes or links as may be designated by the Company to accept this Agreement hereunder, Customer is submitting a legally binding electronic signature and is entering into a legally binding contract. Customer acknowledges that Customer’s electronic submissions constitute Customer’s agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, CUSTOMER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE QUOTAPATH SERVICES OFFERED BY THE COMPANY.  Further, Customer hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.