You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this Agreement (whether on behalf of yourself or behalf of the organization that you represent); and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 18, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL INFORMATION OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER. QuotaPath encourages you to read this Agreement in its entirety, but here are a few key points of our terms and conditions:
- License – QuotaPath provides you with limited permission to use the Services only to manage and track your own sales, commissions, bonuses, and similar earnings and related information.
- Restrictions, Intended Use, and Access and Use – You should not use the Service for any other purposes, and may not reverse engineer or upload viruses to the Services. You also agree not to upload anything that violates the law or anyone else’s rights, and you are solely liable for information and materials that you and the Users submit. Please see the sections below for some of the important rules that limit your use of the Services.
- Modifying and Terminating Services – You can stop using the Services at any time, and QuotaPath may add or remove functionalities or features, and we may suspend or stop a part or all of the Services altogether, at any time.
- Payment and Fees – Portions of the Service are subject to your payment of all applicable fees as more fully discussed below.
- QuotaPath’s Rights in the Services – QuotaPath reserves all rights in the Services. Also, we like when our users share their experiences and ideas for how we can make the Services even better and more useful to you, so we have language that ensures we can use your feedback.
- Content You Submit – You continue to own the data, information, and other content that you submit to the Services, but you provide your permission for QuotaPath to use your content in connection with the Services.
- Copyright Protection – You can notify us about any content on the Services that you believe infringes your copyright by using the contact information below.
- Limited Warranty – You and QuotaPath provide each other limited warranties, but QuotaPath makes no representations or warranties with regard to the Services, and your use of the Services is solely at your risk.
- Indemnification – If you or the Users use the Services in a way that results in damage to us, you take responsibility for that.
- Limitation of Liability – QuotaPath limits its liability in providing the Services to you, listing some specific items for which QuotaPath will not be liable.
- Governing Law – This Agreement is governed by Pennsylvania law.
- Notices – You and QuotaPath can notify one another about matters concerning this Agreement using the contact information listed below or on the Services.
- Order Form – Means each mutually agreed upon order on QuotaPath’s Order Form template that specifies the Services, including the type or quantity of items, including the number of seats or users, the fees for such items and any additional terms applicable to the use of such items.
- Assignment – QuotaPath has the right to transfer this agreement to another person or entity.
Modifications – QuotaPath may make changes to this Agreement, and those changes take effect when posted.
1. License Grant, Restrictions, Use of Services
1.1 License. In the event of a conflict between the terms in an Order Form and this Agreement, the terms in the Order Form shall control with respect the Services provided under such Order Form. Subject to and conditioned on your compliance with the terms and conditions of this Agreement and those in the applicable Order Form, QuotaPath will make the Services available to you on a limited, revocable, non-exclusive basis, and you may access and use the Services solely for your internal, personal business purposes to manage and track your own sales, commissions, bonuses, and similar earnings and related information, and for no other purpose, subject to and conditioned on the terms and conditions set forth in this Agreement and all other applicable policies, rules, and agreements posted via the Services. You are responsible for your own acts and omissions as well as for all acts and omissions of all persons who use the Services via your account (each, a “User”) and for ensuring their compliance with this Agreement.
1.2 Mobile Apps. QuotaPath may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to and governed by this Agreement. If any Mobile App is downloaded by you from the iTunes App Store or any other app store provider (each, an “Mobile App”), your use of such Mobile App is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in the iTunes App Store Terms of Service or such other app store provider’s usage and terms of services, as applicable. This Agreement is between you and QuotaPath only, and not with Apple Inc. (“Apple”) or or any other app store provider, and Apple is not responsible for iOS Mobile Apps and the contents thereof; however, Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement with respect to iOS Mobile Apps.
1.3.1 No Reverse Engineering and other Limitations. You will not or attempt to (and will not allow others to) (a) reverse engineer, decompile, disassemble or translate the Services, or otherwise attempt to derive source code, trade secrets, or know-how in or underlying the Services or any portion thereof; (b) interfere with, modify, disrupt, or disable features or functionality of the Services, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Services; (c) copy, sell, rent, lease, sublicense, transfer, distribute, redistribute, syndicate, create derivative works of, assign, or otherwise transfer or provide access to, in whole or in part, the Services (including the content or data therein) to any third party except as expressly permitted herein; (d) provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet “links” to Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device; (e) use the Services for any illegal, unauthorized, or otherwise improper purposes, including without limitation to store or transmit infringing, libelous, or otherwise unlawful or tortious material, to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights; (f) interfere with or disrupt the integrity or performance of the Services including by disrupting the ability of any other person to use or enjoy the Services, or attempt to gain unauthorized access to the Services or related systems or networks; (g) access the Services in order to build a similar or competitive product or service; (h) remove or alter any proprietary notices or marks on the Services; or (i) use spiders, crawlers, robots, scrapers, automated tools, or any other similar means to access the Services (including the content or data therein), or substantially download, reproduce, or archive any portion of the Services or such content or data.
1.3.2 Prohibited Use. You are solely responsible and liable for all content, data, information, and other materials that you submit to the Services (“Your Content”). For example, you may not use the Services to abuse, harass, or annoy other users or individuals, to violate contractual obligations you have to others (such as contractual obligations of confidentiality), or to violate the intellectual property, privacy, and other rights of others. You will not submit, upload, or post to the Services or otherwise provide to QuotaPath (a) any production data or any confidential or sensitive information, such as protected health information or consumer financial information; (b) infringing, libelous, or otherwise unlawful or tortious material; (c) software viruses, malware, or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware (“Viruses”). You agree that you are solely responsible for determining whether you have sufficient rights to share material in such manner, and QuotaPath shall have no liability whatsoever for any injuries, losses or damages arising from such misuse of the Services, or any components or modifications thereof. QuotaPath may immediately suspend your access to the Services, or delete or prevent you from accessing some or all of the materials in your account upon receipt of a complaint from a third party claiming that you or your Users have shared content, data, information, documents, or other materials to or via use of the Services in violation of such third party’s rights. QuotaPath’s failure to enforce any of these prohibitions shall not act as a waiver for any future enforcement, will not be considered a breach of this Agreement by QuotaPath, and does not create a private right of action for any other party.
1.3.3 Restricted Rights for Government Customers. If you are an agency or unit of the U.S. Government, the Services are provided for ultimate use by such Government entity in accordance with this Agreement and the applicable provisions of the FARs and DFARs. The Services and any related content and data 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.
1.3.4 European Union Customers. Use of the Services and permission to create a QuotaPath account are not currently available for individuals or entities in the European Union, the European Economic Area, or Switzerland (collectively, the “EU”). If QuotaPath expands its offerings to individuals in the EU, it will revise this Agreement to reflect such change. Please note that to the extent such features are available to you outside of the EU, you may not invite an individual or entity in the EU to become a member of your team in the Services or join you in your “Workspace”.
1.4 Account. You and Users may not share your account password(s) with any third party. You agree to immediately notify QuotaPath of any loss or unauthorized access, disclosure, or use of your account, a personal User login, or password. When you or your users choose to share information with others or invite others to your account via features provided through the Services or otherwise, please understand that QuotaPath shall not be responsible or liable to you for the consequences of such choices, including, without limitation, such individuals’ use, theft, misuse, or disclosure to others of the information you share with them. You are fully responsible for all activities that occur under your account. If your account or any user’s account remains inactive for three months or longer, QuotaPath reserves the right to suspend or terminate such account, with or without notice to you, and delete all material within such account without liability.
2. Modifying and Terminating the Services.
We are constantly changing and improving the Services. We may add or remove functionalities or features, and we may suspend or stop a part or all of the Services altogether for any reason, including without limitation for non-compliance with our terms or policies or if we are investigating suspected misconduct. This Agreement is effective upon the earliest of your acceptance of this Agreement, your creation of an account, or your access or use of the Services, and either party may terminate this Agreement at any time. You can stop using the Services at any time, although we’ll be sorry to see you go. We may also stop providing the Services to you (e.g., by suspending or terminating your account), or add or create new limits to the Services, at any time.
3. Payment and Fees.
3.1 Fees and Expenses. You shall pay all agreed upon fees for the Services as set forth in the applicable Order Form (“Fees”) and in accordance with terms set forth in such Order Form.
3.2 Payment Terms. You will pay Fees within 30 days of the invoice date. QuotaPath shall email invoices to you within two (2) business days of the date of the invoice. You shall provide QuotaPath with complete and accurate billing contact information including a valid email address. All payments to QuotaPath are non-refundable except as otherwise expressly provided in the applicable Order Form. All payments will be made in United States dollars via electric funds transfer, as per the instructions of QuotaPath. QuotaPath may invoice parts of an Order Form separately or all in one invoice. Any discounts, interests and taxes invoiced to an Order Form shall be allocated equally to each Service and licenses provided under such Order Form.
3.3 Late Payments. If you fail to pay any past due invoice, QuotaPath may revoke or suspend the Services until such time as you bring your account completely current. QuotaPath may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. If you are delinquent in its payments for two (2) consecutive months, QuotaPath may, upon written notice to you, modify the payment terms to require full pre-payment of any or all Order Forms (both currently contracted and in the future), or require other assurances to secure your payment obligations hereunder.
3.4 Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on QuotaPath’s net income, and you shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts. If you are legally required to withhold any amounts to be paid to QuotaPath, you will deduct such taxes from the amount otherwise owed, pay the tax to the appropriate taxing authority, and provide to QuotaPath on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority, sufficient to permit QuotaPath to establish QuotaPath’s right to a credit for such taxes against QuotaPath’s income tax liability. You shall provide QuotaPath with such assistance as QuotaPath shall reasonably request in connection with any application by QuotaPath to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable income tax treaty.
3.5 Automatic Renewal. This Agreement shall be renewed automatically for succeeding terms of the initial term (“Renewal Terms”) unless either party gives notice to the other at least 30 days prior to the expiration of any term of said party’s intention not to renew this Agreement.
4. Proprietary Rights
4.1 Reservation of Rights in the Services. The Services furnished under this Agreement are licensed and not sold to you, and all rights not expressly granted in this Agreement are reserved by QuotaPath. QuotaPath possesses all right, title and interest in and to the Services and all copyrights, patents, trademarks, service marks, trade names, trade dress, trade secrets and any other proprietary rights that are associated with the Services throughout the world, and you acknowledge that you receive no right, title or interest to the Services except for the limited rights provided within this Agreement. QuotaPath also retains title to any and all copies made of any embodiments or features of the Services, and upon any termination of this Agreement, all such copies must be returned to QuotaPath or destroyed, at QuotaPath’s instruction. You have no rights to receive any source or object code for the Services, or to use the Services except as expressly set forth in this Agreement. You agree not to contest QuotaPath’s title and intellectual property rights in or to the Services.
4.2 Workspace Domains. When you sign up for a new account with QuotaPath and you are the owner of such account, QuotaPath may assign or approve a dedicated domain name to be associated with your account, otherwise known as your “Workspace” (e.g., “Acme.QuotaPath.com”). However, please understand that you will have no proprietary rights in or to such Workspace domain name. QuotaPath reserves all rights in connection with the domain name, including, without limitation, the right at any time to take back such dedicated domain name, with or without notice to you and with or without reassigning a different domain name for use in connection with your Workspace, and if QuotaPath so desires, QuotaPath may reassign any domain name for use by another user of the Services. Notwithstanding the foregoing, if you hold an account which requires you to pay subscription fees to access the Services, QuotaPath will make commercially reasonable efforts to provide you with ninety (90) days’ advance notice before retracting a Workspace domain name that has been approved for your use by QuotaPath, unless the retraction is required by applicable law or legal process or in response to a claim by a third party rights holder, in which case no prior notice period will be required.
4.3 Confidential Information.
4.3.1 Nondisclosure. “Confidential Information” means the proprietary information provided or made available by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), which is marked “confidential” or “proprietary” at the time of disclosure by the Disclosing Party, or by its nature or content would reasonably be considered confidential under the circumstances by the Receiving Party, including without limitation, information (tangible or intangible) regarding a party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. Confidential Information of QuotaPath includes the Services and the pricing of the Services. Receiving Party agrees that it will not (a) use the Disclosing Party’s Confidential Information in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement, or (b) disclose to any third party (except as expressly permitted by this Agreement, required by law or to such party’s attorneys, accountants and other advisors as reasonably necessary or contractors that are bound by written agreements at least as restrictive as this Agreement) any Confidential Information of the Disclosing Party. Receiving Party will secure and protect the confidentiality of the Confidential Information of the Disclosing Party using precautions that are at least as stringent as it takes to protect its own Confidential Information, but in no case less than reasonable precautions.
4.3.2 Exceptions. Receiving Party will have no obligations of confidentiality under Section 4.3.1 for information that is proven by Receiving Party (a) to have been known to Receiving Party prior to its receipt from Disclosing Party from a source other than one having an obligation of confidentiality to Disclosing Party; (b) to have become publicly known, except through a breach of this Agreement by Receiving Party; or (c) to have been entirely independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party. Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or applicable law, provided that, to the extent permitted, it will give Disclosing Party reasonable prior written notice sufficient to permit Disclosing Party to contest such disclosure.
4.4 Feedback. All discoveries, developments, techniques, advice, feedback, suggestions, improvements and similar information developed or provided by you related to the Services (“Feedback”) shall be the sole property of QuotaPath, and you hereby assign to QuotaPath your entire right, title, and interest in and to any such Feedback. QuotaPath 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 your consent or any obligation to render an accounting or share profits or royalties.
4.5 Content You Submit.
The Services allow you to submit content, such as data, information, or other materials. 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 or the Services, you give QuotaPath (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 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 Services, and to develop new products and services. This license continues beyond termination of this Agreement, even if you stop using the Services. Make sure you have the necessary rights to grant us this license for any data or content that you submit to Services.
4.6 Copyright 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 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 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 Services.
The contact information for our Designated Agent is:
Attention: Copyright Agent
1608 Walnut St. Fl 12,
Philadelphia, PA 19103, U.S.A.
If you believe that any of your intellectual property rights other than copyrights have been infringed, please e-mail us at email@example.com. We reserve the right, in our sole and absolute discretion, to suspend or terminate any user who infringes the intellectual property rights of QuotaPath or others, and 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.
5. Data Privacy
5.2 Data Processing. If you are considered a data controller providing your Users’ personal information to QuotaPath through the Services, then QuotaPath will process, store, and use such personal information in accordance with QuotaPath’s Data Processing Addendum attached hereto as Addendum A. If QuotaPath becomes aware of any unauthorized access to any such personal information, it will notify you without undue delay, consult and cooperate with investigations, assist with any required notices, and provide any information that you reasonably request. At your request, QuotaPath shall demonstrate the measures it has taken pursuant to this Section and shall allow you to review such measures, and QuotaPath shall further reasonably assist you in the fulfillment of your obligations to respond to User requests required under applicable data protection laws. QuotaPath may subcontract any of its obligations hereunder or part of the Services, even those that involve the processing of User personal information, to its third party service providers. QuotaPath will not, without prior written notice to you, transfer any User personal information across the border to a country outside of the United States.
5.3 Usage Data. Despite any other provision in this Agreement, QuotaPath may publish, share, or otherwise distribute, to any party, analytics, statistics, or other data related to your and your Users’ use of the Services (“Usage Data”), provided that such Usage Data are aggregated with the data from other QuotaPath customers or users in a manner that does not allow usage data about you or your Users to be separated from the aggregate data and identified as originating from you.
6. Warranties and Disclaimers.
6.1 Mutual Warranties. Each party warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it shall at all times comply with all privacy, data security and other laws and regulations applicable to their activities and geographic territory; and (c) the performance of its obligations and duties pursuant to this Agreement does not conflict with any contractual obligations owed to any third party (including, without limitation, obligations of confidentiality).
6.2 No Warranty. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN THIS SECTION 6, THE SERVICES, INCLUDING ANY DOCUMENTATION, ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITH ALL FAULTS, AND YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. QUOTAPATH MAKES, AND YOU RECEIVE, NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND QUOTAPATH SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; AND ALL STATUTORY REMEDIES. QUOTAPATH DOES NOT WARRANT THAT THE SERVICES, OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER, WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. NO STATEMENT, WHETHER MADE BY QUOTAPATH’S EMPLOYEES, AGENTS, OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY QUOTAPATH FOR ANY PURPOSE OR TO GIVE RISE TO ANY LIABILITY ON THE PART OF QUOTAPATH. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, QUOTAPATH DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND SPECIFICALLY DISCLAIMS, THAT YOU WILL EARN ANY COMMISSIONS, INCOME, OR OTHER REVENUES (OR EXPERIENCE AN INCREASE IN ANY OF THE FOREGOING) THROUGH USE OF THE SERVICES, AND NO ASPECT OF THE SERVICES SHALL BE CONSTRUED TO PROVIDE ANY LEGAL OR FINANCIAL ADVICE (INCLUDING, WITHOUT LIMITATION, PERTAINING TO THE VALIDITY, INTERPRETATION, OR ENFORCEABILITY OF ANY CONTRACTS PERTAINING TO THE PAYMENT OR EARNING OF COMMISSIONS OR OTHER INCOME). THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
You hereby agree to defend, at your own expense, and hold harmless QuotaPath, from and against all third party claims, suits, and actions against QuotaPath to the extent resulting from or arising out of (a) your or the Users’ actual or alleged breach of any of your representations, warranties, or obligations under the Agreement; (b) your or the Users’ use or misuse of the Services, including, without limitation, by using the Services in violation of this Agreement or any other applicable policies, agreements, or rules posted via the Services or otherwise made available to you; or (c) any content or data submitted by you or the Users through the QuotaPath Services, including any Viruses or other material that violates any third party proprietary rights or any contractual or fiduciary obligation owed to a third party (including, without limitation, contractual confidentiality obligations owed to a third party). You further agree to fully indemnify QuotaPath from all losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees), to the extent arising from such a claim, suit, or action.
8. Limitation of Liability.
8.1 Waiver of Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, QUOTAPATH AND OUR AFFILIATES WILL NOT BE RESPONSIBLE FOR ANY LOST PROFITS OR REVENUES, LOSS OF OR INABILITY TO ACCESS DATA, INFORMATION, AND OTHER CONTENT, LOSS OF GOODWILL OR FINANCIAL LOSSES, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
8.2 Damages Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF QUOTAPATH AND OUR AFFILIATES FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT, INCLUDING RELATED TO YOUR USE OF THE SERVICES, IS LIMITED TO, IN THE AGGREGATE, THE GREATER OF (a) THE AMOUNT YOU PAID US TO USE THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CLAIM(S) FIRST AROSE OR (b) USD $50.
8.3 Exclusions. IN ALL CASES, QUOTAPATH 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 NO EVENT WILL QUOTAPATH HAVE ANY LIABILITY WHATSOEVER WITH REGARD TO ANY CONTENT, DATA, OR OTHER MATERIAL UPLOADED TO THE SERVICES BY YOU, YOUR USERS, OR ANY OTHER CUSTOMER OF QUOTAPATH.
8.4 Material Part of Agreement. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS, INCLUDING DISCLAIMERS OF WARRANTIES, SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.1 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 any law that would result in the application of a different body of law. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) 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, as well as specific performance, in any court of competent jurisdiction to protect or preserve its rights in its intellectual property or its Confidential Information, without the need for posting bond. WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
9.2 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 QuotaPath shall be sent to QuotaPath Inc., 1608 Walnut St. Fl 12, Philadelphia, PA 19103 (or such other address as QuotaPath designates by notice sent pursuant to this paragraph), and shall be addressed to QuotaPath’s CEO, with a copy (which shall not constitute notice) to the attention of Ryan Gravelle, at Kastner Gravelle LLP, 1000 N. Lamar Blvd., Suite 300, Austin, TX 78703. All notices to you may be sent to the latest business or e-mail address associated with your account on the Services.
9.3 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. There are no third party beneficiaries to this Agreement.
9.4 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.
9.5 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.
9.6 Assignment. You may not assign this Agreement, in whole or in part, whether voluntarily or by operation of law, contract, merger (whether you are the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or otherwise, to any third party or agency without the prior written consent of QuotaPath. QuotaPath may assign or delegate this Agreement, in whole or in part, without consent at any time. QuotaPath may also, without notice, utilize subcontractors and agents to provide aspects of the Services.
9.7 Modifications. We may modify these terms or any additional terms that apply to Services at any time. For example, we may make changes or add terms to reflect changes to the law or changes to the Services. You should look at the terms regularly and the “Last Updated” date at the beginning of these terms. We will post notice of modified additional terms in the Services, or notify you by email. Changes will not apply retroactively and will become effective when they are posted. Your continued use of the Services after such a modification signifies your acceptance of such modified terms. If you do not agree to the modified terms, you should discontinue your use of Services.
9.8 Entire Agreement. This Agreement, including all applicable orders, addenda, exhibits and attachments hereto, constitutes the sole, final and entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous understandings and agreements (and all such agreements are hereby terminated), written and oral, regarding such subject matter. This Agreement may only be amended by a written document signed by authorized representatives of you and QuotaPath. Any terms and conditions agreed to in a mutually agreed upon and executed order or addendum shall be binding on both parties. The provisions of any such order and addendum shall govern and take precedence over any conflicting or inconsistent provisions of this Agreement.
9.9 Compliance with Laws. Each party will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where the Services are delivered or used, and all applicable laws relating to bribery or corruption. Under these laws, the Services may not be sold, leased, downloaded, moved, exported, re-exported, or transferred across borders without a license, or approval from the relevant government authority, to any country, including countries embargoed by the U.S. Government (currently Cuba, Iran, North Korea, Northern Sudan and Syria); or to any restricted or denied end-user including, but not limited to, any person or entity prohibited by the U.S. Office of Foreign Assets Control; or for any restricted end-use. You will maintain throughout your use of the Services all rights and licenses that are required with respect to such use.
9.10 Electronic Execution and Disclosures. You acknowledge and agree that by clicking on the button labeled “Create Workspace,” “Join,” “Log in,” “I Agree” or “I Accept” or such similar or equivalent buttons, checkboxes or links as may be designated by QuotaPath to accept this Agreement hereunder, you are submitting a legally binding electronic signature and is entering into a legally binding contract. You acknowledge that your electronic submissions constitute your 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, YOU HEREBY AGREE 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 SERVICES OFFERED BY QUOTAPATH. Further, you hereby waive 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.
Addendum A: Data Processing Addendum
a) Data Processor will only process, store, and use the personal data it receives from the Data Controller as necessary to provide the Services, the business purposes as set forth in the Agreement, or Data Controller’s prior written instructions. The Data Processor shall never retain, use, disclose, sell, or process the personal data other than as specified in the Data Controller’s documented instructions or as otherwise permitted by law.
b) The Data Controller has all necessary rights to provide the personal data to the Data Processor for the processing to be performed in connection with the Services. To the extent required by Data Protection Laws, the Data Controller is responsible for providing all necessary privacy notices to data subjects, and unless another legal basis set forth in the Data Protection Laws supports the lawfulness of the processing, and for obtaining any necessary consents from data subject to the processing required under the Agreement. Should such a consent be revoked by a data subject, the Data Controller will inform the Data Processor of such revocation, and the Data Processor is responsible for implementing Data Controller’s instruction with respect to the processing of such personal data.
The Data Processor shall treat all personal data as Confidential Information under the Agreement, and it shall inform all its employees, agents and approved sub-processors engaged in processing the personal data of the confidential nature of the personal data. The Data Processor shall ensure that all such persons or parties have signed confidentiality agreements with obligations no less restrictive in the use and protection of Confidential Information than those in the Agreement.
3. Security Measures.
a) Considering the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Data Processor shall implement appropriate technical and organizational measures to ensure a level of security of the processing of personal data appropriate to the risk. The Data Processor shall maintain and follow written security policies that are fully implemented and applicable to the processing of personal data. At a minimum, such policies will include assignment of internal responsibility for information security management, devoting adequate personnel resources to information security, carrying out verification checks on permanent staff who will have access to the personal data, conducting appropriate background checks, requiring employees, vendors and others with access to personal data to enter into written confidentiality agreements, and conducting training to make employees and others with access to the personal data aware of information security risks presented by the processing.
b) At the request of the Data Controller, the Data Processor shall demonstrate the measures it has taken pursuant to this Article 3 and shall allow the Data Controller to audit and test such measures, to the extent it does not require providing access to other customers’ data. Subject to such restriction, the Data Processor shall cooperate with such audits carried out by or on behalf of the Data Controller, shall grant the Data Controller´s auditors reasonable access to any premises and devices involved with the processing of the personal data, and shall provide the Data Controller´s auditors with access to any information relating to the processing of the personal data as may be reasonably required by the Data Controller to ascertain the Data Processor´s compliance with this Addendum.
4. Data Transfers.
[Option 1 – All Customers, except those in option 2]
Data Processor will not transfer any personal data across the border to a country outside of the United States, without the express prior written permission of Data Controller. Data Processor shall promptly notify the Data Controller of any planned permanent or temporary transfers of personal data across the border to a country outside of the United States, and shall only perform such a transfer after obtaining authorization from the Data Controller, which may be withheld at its sole discretion.
[Option 2 – for EU Customers, or those in countries of adequacy]
Solely to the extent Data Controller transfers any personal data from (a) the European Economic Area, or (b) a jurisdiction where a European Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC is in force and covers such transfer, then the parties agree that such personal data is subject to the model contractual clauses annexed to Commission Decision 2004/915/EC (the “Clauses”), which are hereby incorporated into the Agreement. In such cases, Data Controller is the ‘data exporter’ and Data Processor is the ‘data importer’ as defined in the Clauses.
5. Security Breach.
The Data Processor will notify the Data Controller without undue delay upon discovery of any suspected or actual security or confidentiality breach or other compromise of personal data, describing the breach in reasonable detail, the status of any investigation or mitigation taken by the Data Processor, and if applicable, the potential number of data subjects affected. Data Processor will not communicate with any third party regarding any security breach except as specified by other party or by applicable law.
The Data Processor may subcontract any of its Services-related activities or allow any personal data to be processed by a third party.
7. Data Subject Rights.
The Data Processor shall assist the Data Controller by appropriate technical and organizational measures, insofar as it is possible, for the fulfilment of the Data Controller’s obligation to respond to requests for exercising the data subject’s rights under the Data Protection Laws.