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TERMS OF SERVICE
The following Website Use Agreement (the “Agreement”) describes the terms under
which Qencode, Corp., a Delaware Corporation (“Qencode”), the owner and operator of
the website qencode.com (“Website”) offers a user (“Customer”) access to the content
and services at Website (collectively the “Services”).
This Agreement (including the Qencode Data Processing Addendum (the “DPA”) and
Privacy Policy describing how Qencode will collect, treat, and Process Customer Data
protected by Data Protection Laws (as defined in the DPA)) constitutes a binding
contract and defines the terms and conditions under which Customer is allowed to use
the Services. By downloading or uploading any content from or to Qencode’s servers, or
otherwise using Services in any manner, you are agreeing to be bound by the terms of
this Agreement. You must accept and abide by these terms as presented to you;
changes, additions, or deletions are not acceptable, and Qencode may refuse access to
Services for noncompliance with any part of this agreement.
WHEREAS, Customer wishes to procure from Qencode the transcoding services
described herein, and Qencode wishes to provide such services to Customer, each on
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions.
"Access Credentials" means any unique uniform resource locator (URL), user name,
identification number, password, license or security key, security token, PIN or other
security code, method, technology or device used, alone or in combination, to verify an
individual's identity and authorization to access and use the Hosted Services.
"Action" has the meaning set forth in Section 13.1.
“Account Credit” means an advance payment on Fees for Services not yet used by
Customer.
"Agreement" has the meaning set forth in the preamble.
"Authorized User" means any Person with the Access Credentials needed use the
Qencode’s Services.
"Availability Requirement" has the meaning set forth in Section 5.1.
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"Available" has the meaning set forth in Section 5.1.
"Backup Policy" has the meaning set forth in Section 6.
"Confidential Information" has the meaning set forth in Section 10.1.
"Customer" has the meaning set forth in the preamble.
"Customer Data" means information, data and other content, in any form or
medium, that is collected, downloaded or otherwise received, directly or indirectly from
Customer or an Authorized User by or through the Services or that incorporates or is
derived from the Processing of such information, data or content by or through the
Services. For the avoidance of doubt, Customer Data includes information reflecting the
access or use of the Services by or on behalf of Customer or any Authorized User.
"Customer Failure" has the meaning set forth in Section 4.2.
"Customer Indemnitee" has the meaning set forth in Section 13.1.
"Customer Systems" means the Customer's information technology infrastructure,
including computers, software, hardware, databases, electronic systems (including
database management systems) and networks, whether operated directly by Customer
or through the use of third-party services.
"Disclosing Party" has the meaning set forth in Section 10.1.
"Documentation" means any manuals, instructions or other documents or materials
listed in Schedule B that the Qencode provides or makes available to Customer in any
form or medium and which describe the functionality, components, features or
requirements of the Services or Qencode Materials, including any aspect of the
installation, configuration, integration, operation, use, support or maintenance thereof.
"Effective Date" has the meaning set forth in the preamble.
"Exceptions" has the meaning set forth in Section 5.1.
"Fees" has the meaning set forth in Section 8.1.
"Force Majeure Event" has the meaning set forth in Section 15.1.
"Harmful Code" means any software, hardware or other technology, device or
means, including any virus, worm, malware or other malicious computer code, the
purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt,
disable, distort, or otherwise harm or impede in any manner any (i) computer, software,
firmware, hardware, system or network or (ii) any application or function of any of the
foregoing or the security, integrity, confidentiality or use of any data Processed thereby,
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or (b) prevent Customer or any Authorized User from accessing or using the Services or
Qencode Systems as intended by this Agreement. Harmful Code does not include any
Qencode Disabling Device.
"Hosted Services" has the meaning set forth in Section 2.1.
"Indemnitee" has the meaning set forth in Section 13.3.
"Indemnitor" has the meaning set forth in Section 13.3.
"Initial Term" has the meaning set forth in Section 11.1.
"Intellectual Property Rights" means any and all registered and unregistered rights
granted, applied for or otherwise now or hereafter in existence under or related to any
patent, copyright, trademark, trade secret, database protection or other intellectual
property rights laws, and all similar or equivalent rights or forms of protection, in any
part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution,
treaty, common law, judgment, decree or other requirement of any federal, state, local
or foreign government or political subdivision thereof, or any arbitrator, court or
tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions,
judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever
kind, including reasonable attorneys' fees and the costs of enforcing any right to
indemnification hereunder and the cost of pursuing any insurance providers.
"Permitted Use" means any use of the Services by an Authorized User for the benefit
of Customer solely in or for Customer's internal business operations.
"Person" means an individual, corporation, partnership, joint venture, limited
liability entity, governmental authority, unincorporated organization, trust, association
or other entity.
"Privacy and Security Policy" has the meaning set forth in Section 7.
"Process" means to take any action or perform any operation or set of operations
that the SaaS Services are capable of taking or performing on any data, information or
other content, including to collect, receive, input, upload, download, record, reproduce,
store, organize, compile, combine, log, catalog, cross-reference, manage, maintain,
copy, adapt, alter, translate or make other derivative works or improvements, process,
retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post,
transfer, disclose or otherwise provide or make available, or block, erase or destroy.
"Processing" and "Processed" have correlative meanings.
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"Qencode" has the meaning set forth in the preamble.
"Qencode Disabling Device" means any software, hardware or other technology,
device or means (including any back door, time bomb, time out, drop dead device,
software routine or other disabling device) used by Qencode or its designee to disable
Customer's or any Authorized User's access to or use of the Services automatically with
the passage of time or under the positive control of Qencode or its designee.
"Qencode Indemnitee" has the meaning set forth in Section 13.2.
"Qencode Materials" means the Service Software, Specifications, Documentation
and Qencode Systems and any and all other information, data, documents, materials,
works and other content, devices, methods, processes, hardware, software and other
technologies and inventions, including any deliverables, technical or functional
descriptions, requirements, plans or reports, that are provided or used by Qencode or
any Subcontractor in connection with the Services or otherwise comprise or relate to
the Services or Qencode Systems. For the avoidance of doubt, Qencode Materials
include Resultant Data and any information, data or other content derived from
Qencode's monitoring of Customer's access to or use of the Services, but do not include
Customer Data.
"Qencode Personnel" means all individuals involved in the performance of Services
as employees, agents or independent contractors of Qencode or any Subcontractor.
"Qencode Systems" means the information technology infrastructure used by or on
behalf of Qencode in performing the Services, including all computers, software,
hardware, databases, electronic systems (including database management systems) and
networks, whether operated directly by Qencode or through the use of third-party
services.
"Receiving Party" has the meaning set forth in Section 10.1.
"Reimbursable Expenses" has the meaning set forth in Section 8.3.
"Renewal Term" has the meaning set forth in Section 11.2.
"Representatives" means, with respect to a party, that party's and its Affiliates'
employees, officers, directors, consultants, agents, independent contractors, service
providers, sublicensees, subcontractors and legal advisors.
"Resultant Data" means files, information, data and other content that is derived by
or through the Services from Processing Customer Data and is sufficiently different from
such Customer Data that such Customer Data cannot be reverse engineered or
otherwise identified from the inspection, analysis or further Processing of such
information, data or content.
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"Scheduled Downtime" has the meaning set forth in Section 5.3.
"Service Period" has the meaning set forth in Section 5.1.
"Service Software" means the Qencode software application or applications and any
third-party or other software, and all new versions, updates, revisions, improvements
and modifications of the foregoing, that Qencode provides remote access to and use of
as part of the Services.
"Services" has the meaning set forth in Section 2.1.
"Specifications" means the specifications for the Services set forth in Schedule B
and, to the extent consistent with and not limiting of the foregoing, the Documentation.
"Subcontractor" has the meaning set forth in Section 2.5.
"Support Schedule" has the meaning set forth in Section 5.4.
"Support Services" has the meaning set forth in Section 5.4.
"Term" has the meaning set forth in [Section 11.1/Section 11.2].
"Third Party Materials" means materials and information, in any form or medium,
including any open-source or other software, documents, data, content, specifications,
products, equipment or components of or relating to the Services that are not
proprietary to Qencode.
2. Services.
2.1 Services. Subject to and conditioned on Customer's and its Authorized Users'
compliance with the terms and conditions of this Agreement, during the Term, Qencode
shall use commercially reasonable efforts to provide to Customer and its Authorized
Users the services described in the attached Schedule A and this Agreement
(collectively, the "Services") in accordance with the Specifications and terms and
conditions hereof, including to host, manage, operate and maintain the Service Software
for remote electronic access and use by Customer and its Authorized Users ("Hosted
Services") in substantial conformity with the Specifications 24 hours per day, seven days
per week every day of the year, except for:
(a) Scheduled Downtime in accordance with Section 5.3;
(b) Service downtime or degradation due to a Force Majeure Event;
(c) any other circumstances beyond Qencode's reasonable control, including
Customer's or any Authorized User's use of Third Party Materials, misuse of the Hosted
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Services, or use of the Services other than in compliance with the express terms of this
Agreement and the Specifications; and
(d) any suspension or termination of Customer's or any Authorized Users'
access to or use of the Hosted Services as permitted by this Agreement.
2.2 Service and System Control. Except as otherwise expressly provided in this
Agreement, as between the parties:
(a) Qencode has and will retain sole control over the operation, provision,
maintenance and management of the Services and Qencode Materials, including the: (i)
Qencode Systems; (ii) selection, deployment, modification and replacement of the Service
Software; and (iii) performance of Support Services and Service maintenance, upgrades,
corrections and repairs; and
(b) Customer has and will retain sole control over the operation,
maintenance and management of the Customer Systems, and sole responsibility for all
access to and use of the Services and Qencode Materials by any Person by or through the
Customer Systems or any other means controlled by Customer or any Authorized User,
including any: (i) information, instructions or materials provided by any of them to the
Services or Qencode; (ii) files uploaded or transcoded files downloaded, or otherwise
provided or obtained from any use of the Services or Qencode Materials; and (iii)
deliverables, conclusions, decisions or actions based on such use.
2.3 Service Management. Each party shall, throughout the Term, maintain within its
organization a service manager to serve as such party's primary point of contact for day-
to-day communications, consultation and decision-making regarding the Services. Each
service manager shall be responsible for providing all day-to-day consents and approvals
on behalf of such party under this Agreement. Each party shall ensure its service
manager has the requisite organizational authority, skill, experience and other
qualifications to perform in such capacity. Each party shall use commercially reasonable
efforts to maintain the same service manager in place throughout the Term. If either
party's service manager ceases to be employed by such party or such party otherwise
wishes to replace its service manager, such party shall promptly name a new service
manager by written notice to the other party.
2.4 Changes. Qencode reserves the right, in its sole discretion, to make any changes
to the Services and Qencode Materials that it deems necessary or useful to: (a) maintain
or enhance (i) the quality or delivery of Qencode's services to its customers, (ii) the
competitive strength of or market for Qencode's services or (iii) the Services' cost
efficiency or performance; or (b) to comply with applicable Law. This includes, without
limitation, the addition, removal, or modification of access and usage of certain codecs.
Without limiting the foregoing, either party may, at any time during the Term, request in
writing changes to the Services. The parties shall evaluate and, if agreed, implement all
such requested changes in accordance with the change procedure set forth in Schedule
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D. No requested changes will be effective unless and until memorialized in a written
change order signed by both parties, except that Customer may increase or decrease
the number of Authorized Users for any Services pursuant to Section 3.4.
2.5 Subcontractors. Qencode may from time to time in its discretion engage third
parties to perform Services (each, a "Subcontractor").
2.6 Suspension or Termination of Services. Qencode may, directly or indirectly, and
by use of a Qencode Disabling Device or any other lawful means, suspend, terminate or
otherwise deny Customer's, any Authorized User's or any other Person's access to or use
of all or any part of the Services or Qencode Materials, without incurring any resulting
obligation or liability, if: (a) Qencode receives a judicial or other governmental demand
or order, subpoena or law enforcement request that expressly or by reasonable
implication requires Qencode to do so; or (b) Qencode believes, in its good faith and
reasonable discretion, that: (i) Customer or any Authorized User has failed to comply
with, any term of this Agreement, or accessed or used the Services beyond the scope of
the rights granted or for a purpose not authorized under this Agreement or in any
manner that does not comply with any instruction or requirement of the Specifications;
(ii) Customer or any Authorized User is, has been, or is likely to be involved in any
fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is
terminated. This Section 2.6 does not limit any of Qencode's other rights or remedies,
whether at law, in equity or under this Agreement.
3. Authorization and Customer Restrictions.
3.1 Authorization. Subject to and conditioned on Customer's payment of the Fees
and compliance and performance in accordance with all other terms and conditions of
this Agreement, Qencode hereby authorizes Customer to access and use, solely during
the Term, the Services and such Qencode Materials as Qencode may supply or make
available to Customer solely for the Permitted Use by and through Authorized Users in
accordance with the Specifications, and the conditions and limitations set forth in this
Agreement. This authorization is non-exclusive and other than as may be expressly set
forth in Section 16.8, non-transferable.
3.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest
in or to (including any license under) any Intellectual Property Rights in or relating to,
the Services, Qencode Materials or Third Party Materials, whether expressly, by
implication, estoppel or otherwise. All right, title and interest in and to the Services, the
Qencode Materials and the Third Party Materials are and will remain with Qencode and
the respective rights holders in the Third Party Materials.
3.3 Authorization Limitations and Restrictions. Customer shall not, and shall not
permit any other Person to, access or use the Services or Qencode Materials except as
expressly permitted by this Agreement and, in the case of Third-Party Materials, the
applicable third-party license agreement. For purposes of clarity and without limiting
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the generality of the foregoing, Customer shall not, except as this Agreement expressly
permits:
(a) copy, modify or create derivative works or improvements of the Services
or Qencode Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or
otherwise make available any Services or Qencode Materials to any Person, including on or
in connection with the internet or any time-sharing, service bureau, software as a service,
cloud or other technology or service;
(c) copy, reverse engineer, disassemble, decompile, decode, adapt or
otherwise attempt to derive or gain access to the source code of the Services or Qencode
Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services
or Qencode Materials or access or use the Services or Qencode Materials other than by an
Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or
Qencode Systems, any information or materials that are unlawful or injurious, or contain,
transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise
impede or harm in any manner the Services, Qencode Systems or Qencode's provision of
services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Specifications,
Documentation, End-User License Agreement (EULA), warranties or disclaimers, or any
copyright, trademark, patent or other intellectual property or proprietary rights notices
from any Services or Qencode Materials, including any copy thereof;
(h) access or use the Services or Qencode Materials in any manner or for any
purpose that infringes, misappropriates or otherwise violates any Intellectual Property
Right or other right of any third party (including by any unauthorized access to,
misappropriation, use, alteration, destruction or disclosure of the data of any other
Qencode customer), or that violates any applicable Law;
(i) access or use the Services or Qencode Materials for purposes of
competitive analysis of the Services or Qencode Materials, the development, provision or
use of a competing software service or product or any other purpose that is to the
Qencode's detriment or commercial disadvantage; or
(j) otherwise access or use the Services or Qencode Materials beyond the
scope of the authorization granted under Section 3.1.
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3.4 Reserved.
4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term:
(a) set up, maintain and operate in good repair and in accordance with the Specifications
all Customer Systems on or through which the Services are accessed or used; (b) provide
Qencode Personnel with such access to Customer Systems as is necessary for Qencode
to perform the Services in accordance with the Availability Requirement and
Specifications; and (c) provide all cooperation and assistance as Qencode may
reasonably request to enable Qencode to exercise its rights and perform its obligations
under and in connection with this Agreement.
4.2 Effect of Customer Failure or Delay . Qencode is not responsible or liable for any
delay or failure of performance caused in whole or in part by Customer's delay in
performing, or failure to perform, any of its obligations under this Agreement (each, a
"Customer Failure").
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or
threatened activity prohibited by Section 3.3, Customer shall, and shall cause its
Authorized Users to, immediately: (a) take all reasonable and lawful measures within
their respective control that are necessary to stop the activity or threatened activity and
to mitigate its effects (including, where applicable, by discontinuing and preventing any
unauthorized access to the Services and Qencode Materials and permanently erasing
from their systems and destroying any data to which any of them have gained
unauthorized access); and (b) notify Qencode of any such actual or threatened activity.
4.4 Non-Solicitation. During the Term and for 5 years after, Customer shall not, and
shall not assist any other Person to, directly or indirectly recruit or solicit for
employment or engagement as an independent contractor any Person then or within
the prior twenty-four months employed or engaged by Qencode or any Subcontractor
and involved in any respect with the Services or the performance of this Agreement. In
the event of a violation of this Section 4.4, Qencode will be entitled to liquidated
damages equal to the compensation paid by Qencode to the applicable employee or
contractor during the prior twenty-four months.
5. Support and Downtime.
5.1 Reserved.
5.2 Reserved.
5.3 Scheduled Downtime. Qencode will use commercially reasonable efforts to; (a)
schedule downtime for routine maintenance of the Hosted Services; and (b) give
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Customer at least 12-24 hours prior notice of all scheduled outages of the Hosted
Services ("Scheduled Downtime").
5.4 Service Support. The Services include Qencode’s standard customer support
services ("Support Services") in accordance with the Qencode service support schedule
(the "Support Schedule"), and may be requested by contacting [email protected].
Qencode may amend the Support Schedule from time to time in its sole discretion.
Customer may purchase enhanced support services separately at Qencode’s then
current rates.
6. Data Backup. Qencode shall delete all Customer’s files related to the Services,
including, but not limited to, Customer files provided for the Services and the files
generated by the Services. Qencode may delete the Customer files after 24-48 hours
has elapsed from the generation of the corresponding files. Customer has no right to
recover, and Qencode has no means to recover, any deleted data. As such, Customer
will need to engage in the Services to reconstruct any deleted Resultant Data at
Customer’s cost. The Services do not replace the need for Customer to maintain regular
data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY
FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF
CUSTOMER DATA.
7. Security.
7.1 Customer Control and Responsibility. Customer has and will retain sole
responsibility for: (a) all Customer Data, including its content and use; (b) all
information, instructions and materials provided by or on behalf of Customer or any
Authorized User in connection with the Services; (c) Customer's information technology
infrastructure, including computers, software, databases, electronic systems (including
database management systems) and networks, whether operated directly by Customer
or through the use of third-party services ("Customer Systems"); (d) the security and
use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and
use of the Services and Qencode Materials directly or indirectly by or through the
Customer Systems or its Authorized Users' Access Credentials, with or without
Customer’s knowledge or consent, including all results obtained from, and all
conclusions, decisions and actions based on, such access or use.
7.2 Access and Security. Customer shall employ all physical, administrative and
technical controls, screening and security procedures and other safeguards necessary
to: (a) securely administer the distribution and use of all Access Credentials and protect
against any unauthorized access to or use of the Hosted Services; and (b) control the
content and use of Customer Data, including the uploading or other provision of
Customer Data for Processing by the Hosted Services.
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8. Fees; Payment Terms.
8.1 Fees. Customer shall pay Qencode the fees set forth in Schedule A ("Fees") in
accordance with this Section 8.
8.2 Fee Increases. Qencode may increase Fees after the first contract year of the
Initial Term, by providing written notice to Customer at least 30 calendar days prior to
the commencement of that contract year, and Schedule A will be deemed amended
accordingly.
8.3 Reimbursable Expenses. Subject to Customer approval of Reimbursable Expenses
in advance, Customer shall reimburse Qencode for out-of-pocket expenses incurred by
Qencode in connection with performing the Services ("Reimbursable Expenses").
8.4 Taxes. All Fees and other amounts payable by Customer under this Agreement
are exclusive of taxes and similar assessments. Customer is responsible for all sales, use
and excise taxes, and any other similar taxes, duties and charges of any kind imposed by
any federal, state or local governmental or regulatory authority on any amounts payable
by Customer hereunder, other than any taxes imposed on Qencode's income.
8.5 Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to
the due date set forth in Schedule A. Customer shall make all payments hereunder in US
dollars. Payments may be made to fill the Customer’s Account Credits. Usage of the
Services may cause an auto-deduction from the Customer’s Account Credits. In
instances where the Customer does not have Account Credits, Customer may
accumulate an account balance corresponding to accrued usage Fees for the Services.
The Customer must pay down the Fees prior to replenishing any Account Credits.
Customer may further keep bank account or credit card account information with the
Qencode, such that Qencode may draw upon the Customer’s account once a month for
accrued usage Fees. Payments by credit card may have a corresponding transaction
fee, added to the Fees.
8.6 Late Payment. If Customer fails to make any payment when due then, in addition
to all other remedies that may be available:
(a) Qencode may charge interest on the past due amount at the rate of 1.5%
per month calculated daily and compounded monthly or, if lower, the highest rate
permitted under applicable Law;
(b) Customer shall reimburse Qencode for all costs incurred by Qencode in
collecting any late payments or interest, including attorneys' fees, court costs and collection
agency fees; and
(c) if such failure continues for 30 days following written notice thereof,
Qencode may suspend performance of the Services until all past due amounts and interest
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thereon have been paid, without incurring any obligation or liability to Customer or any
other Person by reason of such suspension.
8.7 No Deductions or Setoffs. All amounts payable to Qencode under this Agreement
shall be paid by Customer to Qencode in full without any setoff, recoupment,
counterclaim, deduction, debit or withholding for any reason other than Service Credits
issued pursuant to Section 5.2 or any deduction or withholding of tax as may be
required by applicable Law.
8.8 Unauthorized Use or Unanticipated Use . Customer agrees to pay the Fees for
any usage of the Services, including, but not limited to, for usage that was accidental,
unintended, in error or through the misappropriation of Access Credentials.
9. Intellectual Property Rights.
9.1 Services and Qencode Materials. All right, title and interest in and to the Services
and Qencode Materials, including all Intellectual Property Rights therein, are and will
remain with Qencode and the respective rights holders in the Third-Party Materials.
Customer has no right, license or authorization with respect to any of the Services or
Qencode Materials (including Third-Party Materials) except as expressly set forth in
Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All
other rights in and to the Services and Qencode Materials (including Third-Party
Materials) are expressly reserved by Qencode and the respective third-party licensors.
9.2 Customer Data. Customer licenses, or sublicenses, as the case may be, to
Qencode all necessary rights, including, but not limited to, copyrights and trademarks,
with permission to duplicate, distribute, publish, store, adapt, transform, and create
derivative works of the Customer Data. Such license shall be limited to the Term and for
the purpose of providing the Services to Customer. As between Customer and Qencode,
Customer is and will remain the sole and exclusive owner of all right, title and interest in
and to all Customer Data, including all Intellectual Property Rights relating thereto,
subject to the rights and permissions granted in Section 9.3. Customer warrants that it
owns or has obtained all necessary license rights from third parties, including owners or
licensors of certain third party audio and video formats, copyrights, watermarks, or
trademarks. Customer is solely responsible for obtaining these licenses and paying any
necessary royalties or fees.
9.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such
rights and permissions in or relating to Customer Data: (a) to Qencode, its
Subcontractors and the Qencode Personnel as are necessary or useful to perform the
Services; and (b) to Qencode as are necessary or useful to enforce this Agreement and
exercise its rights and perform its hereunder.
10. Confidentiality.
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10.1 Confidential Information. In connection with this Agreement each party
(as the "Disclosing Party") may disclose or make available Confidential Information to
the other party (as the "Receiving Party"). Subject to Section 10.2, "Confidential
Information" means information in any form or medium (whether oral, written,
electronic or other) that the Disclosing Party considers confidential or proprietary,
including information consisting of or relating to the Disclosing Party’s technology, trade
secrets, know-how, business operations, plans, strategies, customers, and pricing, and
information with respect to which the Disclosing Party has contractual or other
confidentiality obligations, in each case whether or not marked, designated or otherwise
identified as "confidential". Without limiting the foregoing: all Qencode Materials are
the Confidential Information of Qencode and the financial terms and existence of this
Agreement are the Confidential Information of each of the parties.
10.2 Exclusions. Confidential Information does not include information that
the Receiving Party can demonstrate by written or other documentary records: (a) was
rightfully known to the Receiving Party without restriction on use or disclosure prior to
such information's being disclosed or made available to the Receiving Party in
connection with this Agreement; (b) was or becomes generally known by the public
other than by the Receiving Party's or any of its Representatives' noncompliance with
this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis
from a third party that[, to the Receiving Party's knowledge, was not or is not, at the
time of such receipt, under any obligation to maintain its confidentiality; or (d) the
Receiving Party can demonstrate by written or other documentary records was or is
independently developed by the Receiving Party without reference to or use of any
Confidential Information.
10.3 Protection of Confidential Information. As a condition to being provided
with any disclosure of or access to Confidential Information, the Receiving Party shall for
5 years:
(a) not access or use Confidential Information other than as necessary to
exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section
10.4, not disclose or permit access to Confidential Information other than to its
Representatives who: (i) need to know such Confidential Information for purposes of the
Receiving Party's exercise of its rights or performance of its obligations under and in
accordance with this Agreement; (ii) have been informed of the confidential nature of the
Confidential Information and the Receiving Party's obligations under this Section 10.3; and
(iii) are bound by confidentiality and restricted use obligations at least as protective of the
Confidential Information as the terms set forth in this Section 10.3;
(c) safeguard the Confidential Information from unauthorized use, access or
disclosure using at least the degree of care it uses to protect its sensitive information and in
no event less than a reasonable degree of care; and
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(d) ensure its Representatives' compliance with, and be responsible and
liable for any of its Representatives' non-compliance with, the terms of this Section 10.
10.4 Compelled Disclosures. If the Receiving Party or any of its Representatives
is compelled by applicable Law to disclose any Confidential Information then, to the
extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to
such disclosure, notify the Disclosing Party in writing of such requirement so that the
Disclosing Party can seek a protective order or other remedy or waive its rights under
Section 10.3; and (b) provide reasonable assistance to the Disclosing Party, at the
Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a
protective order or other limitations on disclosure. If the Disclosing Party waives
compliance or, after providing the notice and assistance required under this Section
10.4, the Receiving Party remains required by Law to disclose any Confidential
Information, the Receiving Party shall disclose only that portion of the Confidential
Information that[, on the advice of the Receiving Party's legal counsel, the Receiving
Party is legally required to disclose and, on the Disclosing Party's request, shall use
commercially reasonable efforts to obtain assurances from the applicable court or other
presiding authority that such Confidential Information will be afforded confidential
treatment.
11. Term and Termination .
11.1 Initial Term. The initial term of this Agreement commences as of the
Effective Date and, unless terminated earlier pursuant any of the Agreement's express
provisions, will continue in effect until on year from such date (the "[Initial] Term").
11.2 Renewal. This Agreement will automatically renew for up to 10 additional
successive one year terms unless earlier terminated pursuant to this Agreement's
express provisions or either party gives the other party written notice of non-renewal at
least 30 days prior to the expiration of the then-current term (each "Renewal Term"
and, collectively, together with the Initial Term, the "Term").
11.3 Termination. In addition to any other express termination right set forth
elsewhere in this Agreement:
(a) Qencode may terminate this Agreement, effective on written notice to
Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure
continues more than [30] days after Qencode's delivery of written notice thereof; or (ii)
breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions) or
Section 10 (Confidentiality);
(b) either party may terminate this Agreement, effective on written notice to
the other party, if the other party breaches this Agreement, and such breach: (i) is
incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-
breaching party provides the breaching party with written notice of such breach;
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(c) either party may terminate this Agreement, effective immediately upon
written notice to the other party, if the other party: (i) becomes insolvent or is generally
unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a
petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily
or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency
Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv)
applies for or has appointed a receiver, trustee, custodian or similar agent appointed by
order of any court of competent jurisdiction to take charge of or sell any material portion of
its property or business;
(d) Qencode may terminate this Agreement, at its sole discretion, when
Customer has no Account Credits associated with the Customer’s account, without Notice.
(e) Customer may terminate this Agreement, at its sole discretion, when
Customer has no Account Credits, without Notice.
(f) Qencode may terminate this Agreement, at its sole discretion, when
Customer has Account Credits associated with the Customer’s account by providing a 7
days notice of the Termination. Within 30 days of Termination, Qencode must refund the
Account Credits at a value equivalent to the US Dollar payment received for the Account
Credits.
(g) Customer may terminate this Agreement, at its sole discretion, when
Customer has Account Credits by providing a 7 days notice of the Termination. Within 30
days of Termination, Qencode must refund the Account Credits at a value equivalent to the
US Dollar payment received for the Account Credits; and
(h) Any Service Credits will be cancelled upon Termination. Customer shall
not be entitled to a cash value for any Service Credits upon any Termination event
associated with this Agreement.
11.4 Effect of Expiration or Termination. Upon any expiration or termination of
this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to
the other hereunder will immediately terminate;
(b) Qencode shall immediately cease all use of any Customer Data or
Customer's Confidential Information and (i) with 14 days return to Customer, or at
Customer's written request destroy, all documents and tangible materials containing,
reflecting, incorporating or based on Customer Data or Customer's Confidential
Information; and (ii) permanently erase all Customer Data and Customer's Confidential
Information from all systems Qencode directly or indirectly controls;
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(c) Customer shall immediately cease all use of any Services or Qencode
Materials and (i) within 14 days return to Qencode, or at Qencode's written request
destroy, all documents and tangible materials containing, reflecting, incorporating or based
on any Qencode Materials or Qencode's Confidential Information and (ii) permanently
erase all Qencode Materials and Qencode's Confidential Information from all systems
Customer directly or indirectly controls; and (iii) certify to Qencode in a signed written
instrument that it has complied with the requirements of this Section 11.4(c);
(d) Qencode may disable all Customer and Authorized User access to the
Hosted Services and Qencode Materials;
(e) if Customer terminates this Agreement pursuant to Section 11.3(b),
Customer will be relieved of any obligation to pay any Fees attributable to the period after
the effective date of such termination and Qencode will refund to Customer Fees paid in
advance for Services that Qencode has not performed as of the effective date of
termination. Customer will not be entitled to receive payment for any unused Service
Credits;
(f) if Qencode terminates this Agreement pursuant to Section 11.3(a) or
Section 11.3(b), all Fees that would have become payable had the Agreement remained in
effect until expiration of the Term will become immediately due and payable, and Customer
shall pay such Fees, together with all previously-accrued but not yet paid Fees and
Reimbursable Expenses, on receipt of Qencode's invoice therefor.
11.5 Surviving Terms. The provisions set forth in the following sections, and
any other right or obligation of the parties in this Agreement that, by its nature, should
survive termination or expiration of this Agreement, will survive any expiration or
termination of this Agreement: Section 3.3, Section 10, Section 11.4, this Section 11.5,
Section 12, Section 13, Section 14 and Section 16.
12. Representations and Warranties.
12.1 Mutual Representations and Warranties. Each party represents and
warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation
or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its
obligations and grant the rights, licenses, consents and authorizations it grants or is
required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is
set forth at the end of this Agreement has been duly authorized by all necessary corporate
or organizational action of such party; and
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(d) when executed and delivered by both parties, this Agreement will
constitute the legal, valid and binding obligation of such party, enforceable against such
party in accordance with its terms.
12.2 Reversed.
12.3 Additional Customer Representations, Warranties and Covenants .
Customer represents, warrants and covenants to Qencode that Customer owns or
otherwise has and will have the necessary rights and consents in and relating to the
Customer Data so that, as received by Qencode and Processed in accordance with this
Agreement, they do not and will not infringe, misappropriate or otherwise violate any
Intellectual Property Rights, or any privacy or other rights of any third party or violate
any applicable Law. Notwithstanding the foregoing, to the extent Qencode processes
Customer Data protected by Data Protection Laws (as defined in the DPA) as a processor
on Customer’s behalf, Customer agrees that Customer and Qencode shall be subject to
and comply with the DPA, which is incorporated into and forms an integral part of this
Agreement.
12.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES
SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND
PROVIDER MATERIALS ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES
ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING
THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES
OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL
MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT
INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY
SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE
OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS
IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY
MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR
DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
13. Indemnification.
13.1 Reserved.
13.2 Customer Indemnification. Customer shall indemnify, defend and hold
harmless Qencode and its Subcontractors and Affiliates, and each of its and their
respective officers, directors, employees, agents, successors and assigns (each, a
"Qencode Indemnitee") from and against any and all Losses incurred by such Qencode
Indemnitee in connection with any Action by a third to the extent that such Losses,
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including, but not limited to, Intellectual Property Rights infringement, arise out of or
relate to any:
(a) Customer Data, including any Processing of Customer Data by or on
behalf of Qencode in accordance with this Agreement;
(b) Resultant Data derived from Customer Data;
(c) any other materials or information (including any documents, data,
specifications, software, content or technology) provided by or on behalf of Customer or
any Authorized User, including Qencode's compliance with any specifications or directions
provided by or on behalf of Customer or any Authorized User to the extent prepared
without any contribution by Qencode;
(d) allegation of facts that, if true, would constitute Customer's breach of any
of its representations, warranties, covenants or obligations under this Agreement; or
(e) negligence or more culpable act or omission (including recklessness or
willful misconduct) by Customer, any Authorized User, or any third party on behalf of
Customer or any Authorized User, in connection with this Agreement.
13.3 Indemnification Procedure. Qencode shall promptly notify the other
party in writing of any Action for which such party believes it is entitled to be
indemnified pursuant to Section 13.2, as the case may be. The party seeking
indemnification (the "Indemnitee") shall cooperate with the other party (the
"Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall
immediately take control of the defense and investigation of such Action and shall
employ counsel of its choice to handle and defend the same, at the Indemnitor's sole
cost and expense. The Indemnitee's failure to perform any obligations under this
Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13
except to the extent that the Indemnitor can demonstrate that it has been prejudiced as
a result of such failure. The Indemnitee may participate in and observe the proceedings
at its own cost and expense with counsel of its own choosing.
13.4 Mitigation. If any of the Services or Qencode Materials are, or in
Qencode's opinion are likely to be, claimed to infringe, misappropriate or otherwise
violate any third-party Intellectual Property Right, or if Customer's or any Authorized
User's use of the Services or Qencode Materials is enjoined or threatened to be
enjoined, Qencode may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and
Qencode Materials as contemplated by this Agreement;
(b) modify or replace the Services and Qencode Materials, in whole or in
part, to seek to make the Services and Qencode Materials (as so modified or replaced) non-
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infringing, while providing equivalent features and functionality, in which case such
modifications or replacements will constitute Services and Qencode Materials, as
applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement and require
Customer to immediately cease any use of the Services and Qencode Materials, provided
that if such termination occurs prior to 1 year after the Effective Date, subject to
Customer's compliance with its post-termination obligations set forth in Section 11.4,
Customer will be entitled to a refund of only the Account Credits associated with the
Customer’s Account.
THIS SECTION 13 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE
LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT
THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND
PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY
THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
14. Limitations of Liability.
14.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS
LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE
THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS,
REVENUE OR PROFIT [OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE
OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE
OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 5.2, (c) LOSS, DAMAGE,
CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR
(d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR
PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE
POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE
OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR
OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE
LIABILITY OF PROVIDER UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS
SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED
THE AMOUNT OF $100. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE
FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
15. Force Majeure.
15.1 No Breach or Default. In no event will either party be liable or responsible
to the other party, or be deemed to have defaulted under or breached this Agreement,
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for any failure or delay in fulfilling or performing any term of this Agreement, (except for
any payment obligation), when and to the extent such failure or delay is caused by any
circumstances beyond such party's reasonable control (a "Force Majeure Event"),
including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot
or other civil unrest, embargoes or blockades in effect on or after the date of this
Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or
other industrial disturbances, passage of Law or any action taken by a governmental or
public authority, including imposing an embargo, export or import restriction, quota or
other restriction or prohibition or any complete or partial government shutdown, or
national or regional shortage of adequate power or telecommunications or
transportation. Either party may terminate this Agreement if a Force Majeure Event
affecting the other party continues substantially uninterrupted for a period of 30 days or
more.
15.2 Affected Party Obligations. In the event of any failure or delay caused by
a Force Majeure Event, the affected party shall give prompt written notice to the other
party stating the period of time the occurrence is expected to continue and use diligent
efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16. Miscellaneous.
16.1 Further Assurances. Upon a party's reasonable request, the other party
shall, at the requesting party's sole cost and expense, execute and deliver all such
documents and instruments, and take all such further actions, necessary to give full
effect to this Agreement.
16.2 Relationship of the Parties. The relationship between the parties is that of
independent contractors. Nothing contained in this Agreement shall be construed as
creating any agency, partnership, joint venture or other form of joint enterprise,
employment or fiduciary relationship between the parties, and neither party shall have
authority to contract for or bind the other party in any manner whatsoever.
16.3 Public Announcements. Neither party shall issue or release any
announcement, statement, press release or other publicity or marketing materials
relating to this Agreement or otherwise use the other party's trademarks, service marks,
trade names, logos, domain names or other indicia of source, affiliation or sponsorship,
in each case, without the prior written consent of the other party, which consent shall
not be unreasonably withheld, conditioned or delayed, provided, however, that
Qencode may, without Customer's consent, include Customer's name in its lists of
Qencode's current or former customers of Qencode in promotional and marketing
materials.
16.4 Notices. All notices, requests, consents, claims, demands, waivers and
other communications under this Agreement have binding legal effect only if in writing
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and addressed to a party as follows (or to such other address or such other person that
such party may designate from time to time in accordance with this Section 16.4):
If to Qencode: E-mail: [email protected]
If to Customer: Customer’s Email Address on File
Notices sent in accordance with this Section 16.4 will be deemed effectively
given when sent, email, with confirmation of transmission, if sent during the addressee's
normal business hours, and on the next business day, if sent after the addressee's
normal business hours.
16.5 Interpretation. For purposes of this Agreement: (a) the words "include,"
"includes" and "including" are deemed to be followed by the words "without limitation";
(b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto"
and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular
have a comparable meaning when used in the plural, and vice-versa; and (e) words
denoting any gender include all genders. Unless the context otherwise requires,
references in this Agreement: (x) to sections, exhibits, schedules, attachments and
appendices mean the sections of, and exhibits, schedules, attachments and appendices
attached to, this Agreement; (y) to an agreement, instrument or other document means
such agreement, instrument or other document as amended, supplemented and
modified from time to time to the extent permitted by the provisions thereof; and (z) to
a statute means such statute as amended from time to time and includes any successor
legislation thereto and any regulations promulgated thereunder. The parties intend this
Agreement to be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting an instrument or causing any
instrument to be drafted. The exhibits, schedules, attachments and appendices referred
to herein are an integral part of this Agreement to the same extent as if they were set
forth verbatim herein.
16.6 Headings. The headings in this Agreement are for reference only and do
not affect the interpretation of this Agreement.
16.7 Entire Agreement. This Agreement constitutes the sole and entire
agreement of the parties with respect to the subject matter of this Agreement and
supersedes all prior and contemporaneous understandings, agreements,
representations and warranties, both written and oral, with respect to such subject
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matter. In the event of any inconsistency between the statements made in the body of
this Agreement, the related exhibits, schedules, attachments and appendices, the
following order of precedence governs: (a) first, this Agreement, excluding its exhibits,
schedules, attachments and appendices; (b) second, the exhibits, schedules,
attachments and appendices to this Agreement as of the Effective Date; and (c) third,
any other documents incorporated herein by reference.
16.8 Assignment. Customer shall not assign or otherwise transfer any of its
rights, or delegate or otherwise transfer any of its obligations or performance, under
this Agreement, in each case whether voluntarily, involuntarily, by operation of law or
otherwise, without Qencode's prior written consent. For purposes of the preceding
sentence, and without limiting its generality, any merger, consolidation or
reorganization involving Customer (regardless of whether Customer is a surviving or
disappearing entity) will be deemed to be a transfer of rights, obligations or
performance under this Agreement for which Qencode's prior written consent is
required. No delegation or other transfer will relieve Customer of any of its obligations
or performance under this Agreement. Any purported assignment, delegation or
transfer in violation of this Section 16.8 is void. This Agreement is binding upon and
inures to the benefit of the parties hereto and their respective permitted successors and
assigns.
16.9 No Third-party Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and their respective permitted successors and permitted assigns and
nothing herein, express or implied, is intended to or shall confer upon any other Person
any legal or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
16.10 Amendment and Modification; Waiver. No amendment to or
modification of, or rescission, termination or discharge of, this Agreement is effective
unless it is in writing, identified as an amendment to, or rescission, termination or
discharge of, this Agreement and signed by an authorized representative of each party.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly
set forth in writing and signed by the party so waiving. Except as otherwise set forth in
this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power
or privilege arising from this Agreement shall operate or be construed as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
16.11 Severability. If any provision of this Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction. Upon such determination
that any term or other provision is invalid, illegal or unenforceable, the parties hereto
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shall negotiate in good faith to modify this Agreement so as to effect the original intent
of the parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to the
greatest extent possible.
16.12 Governing Law; Submission to Jurisdiction. This Agreement is governed
by and construed in accordance with the internal laws of the State of CALIFORNIA
without giving effect to any choice or conflict of law provision or rule that would require
or permit the application of the laws of any jurisdiction other than those of the State of
CALIFORNIA. Any legal suit, action or proceeding arising out of or related to this
Agreement or the licenses granted hereunder shall be instituted in the federal courts of
the United States or the courts of the State of CALIFORNIA in each case located in the
city of Los Angeles and County of Los Angeles, and each party irrevocably submits to the
exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of
process, summons, notice or other document by mail to such party's address set forth
herein shall be effective service of process for any suit, action or other proceeding
brought in any such court.
16.13 Equitable Relief. Each party acknowledges and agrees that a breach or
threatened breach by such party of any of its obligations under Section 10 or, in the
case of Customer, Section 3.3, or Section 4.3, would cause the other party irreparable
harm for which monetary damages would not be an adequate remedy and agrees that,
in the event of such breach or threatened breach, the other party will be entitled to
equitable relief, including a restraining order, an injunction, specific performance and
any other relief that may be available from any court, without any requirement to post a
bond or other security, or to prove actual damages or that monetary damages are not
an adequate remedy. Such remedies are not exclusive and are in addition to all other
remedies that may be available at law, in equity or otherwise.
16.14 Alternative Dispute Resolution. Any disputes, controversies, or claims in
connection with or arising out of this Agreement, its negotiation, existence, validity or
termination, shall be referred to and finally determined by arbitration before a single
arbitrator who is a member of the American Arbitration Association. Such arbitration
shall be held in accordance with the Commercial Rules of the American Arbitration
Association, with the governing law to be that of CALIFORNIA and the laws of the
United States applicable therein.
16.15 Authority. Customer warrants that the user utilizing the services and
entering into this agreement with the Qencode on behalf of the Customer has all the
necessary authority to enter into this agreement on behalf of the Customer.
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