QDEX END USER LICENCE AGREEMENT
THIS QDEX END USER LICENCE AGREEMENT (THE "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU ("YOU"), AND QUANSER INC. ("QUANSER") WITH AN OFFICE AT 119 SPY COURT, MARKHAM, ONTARIO, L3R5H6, CANADA (TOGETHER THE "PARTIES" AND INDIVIDUALLY A "PARTY").
PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK OR TAP ON THE APPROPRIATE BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE QDEX MOBILE APP.
THE QDEX SOLUTION MAY CONTINUE TO CHANGE OVER TIME AS QUANSER REFINES AND/OR ADDS MORE FEATURES. QUANSER MAY STOP, SUSPEND, OR MODIFY THE QDEX SOLUTION AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. QUANSER MAY ALSO REMOVE ANY FEATURES AND CONTENT FROM THE QDEX SOLUTION IN ITS SOLE DISCRETION.
1. Definitions. Unless the context requires otherwise, the following terms have the meanings set out below (and where the context so admits, the singular shall include the plural, and vice versa).
“Administrator” means users who have the same authorization as Creators and Publishers in addition to the authorization to delete Registered User accounts and edit certain Registered User registration information. Administrators may also be granted access to special usage analytics and reports.
“Content” means any interactive digital content created by third parties using the Tools or created using third party platforms or technologies that provide educational offerings in engineering and scientific domains to You.
“Content Repository” means Content that is uploaded to an area within the QDEX Web Platform that is accessible by and can be downloaded to the QDEX Mobile App. For clarity, Content Repository includes REPO.
“Creator” means users authorized to download QDEX PLAY, install QDEX CREATE, and access QDEX MANAGE. For clarity, Creators may upload Content to QDEX REPO using QDEX CREATE, and read any resulting QDEX MODULE using QDEX PLAY.
"Documentation" means the applicable installation guide and other standard end user documentation, including, any safety instructions, codes of conduct, guidelines, or usage rules prepared and supplied by Quanser for the specific type and version of QDEX Mobile App.
“ENTERPRISE Software Platform” means the Quanser proprietary software platform that may include as applicable, customer versions of QDEX PLAY, QDEX REPO, and QDEX MANAGE.
"Handheld Product" means any device including a portable device such as a smartphone or tablet on which QDEX Mobile App has been designed and authorized by Quanser to operate.
“Materials” means any data, text, photograph, graphic, video, message, tag, music, sound, or other digital material or other digital information.
“Publisher” means users who have the same authorization as Creators in addition to the authorization to manage specific QDEX MODULES by expanding the number of Registered Users who can access said QDEX Modules. Publishers may also register other Registered Users accounts.
“QDEX CREATE” means the Content creation application that may be provided to You under this Agreement as a Microsoft Visual Studio plugin, or stand-alone application.
“QDEX MANAGE” means the account management platform that may be provided to You under this Agreement on the QDEX Web Platform.
“QDEX Software Bundle” means the software components and applications provided to You under this Agreement (in whatever form, medium or manner provided or subsequently installed or used, including but not limited to QDEX PLAY and QDEX CREATE) to access the Quanser QDEX Solution that may include as applicable.
"QDEX Mobile App" means the Quanser proprietary QDEX mobile application provided to You under this Agreement (in whatever form, medium or manner provided or subsequently installed or used, including but not limited to QDEX PLAY) and designed for use on a Handheld Product and as part of the Quanser QDEX Solution. The term "QDEX Mobile App" shall not include any Third Party Components or Content, whether or not the Third Party Components or Content is distributed by Quanser or on behalf of Quanser, or the Third Party Components or Content accompanies, is provided with, or operates in conjunction with, the QDEX Mobile App.
“QDEX MODULES” means the modules that may be available to You under this Agreement through the QDEX Mobile App. Without limiting the foregoing, the QDEX MODULES may be “Private” whereby only the Creator may read and/or write the module’s content, “Closed Group” whereby only certain users may read the module’s content as authorized by the module’s Publisher or Administrator, “Public” whereby any user who has QDEX PLAY may only read the module’s content, or “Collaborative” whereby users authorized by the module’s Publisher or Administrator may read and write the module’s content.
“QDEX PLAY” means the QDEX Mobile App that may be provided to You under this Agreement as a player and may be available on Apple iTunes and Google Play.
"Quanser QDEX Solution" means the Quanser proprietary software platform that includes but is not limited to the QDEX Mobile App, QDEX Web Platform, QDEX CREATE, and Documentation.
"QDEX Web Platform" means a Quanser proprietary web platform that includes Tools and the Content Repository. For clarity, the QDEX Web Platform includes QDEX MANAGE and web-based portions of the ENTERPRISE Software Platform. Users that are enterprises or intuitions (“Enterprise Users”) may use the QDEX Web Platform to manage user accounts and permissions.
“Registered User” means any Creator, Publisher, or Administrator.
“REPO” means a Content Repository server that stores all of the Content, which includes Third Party Components.
"Third Party Components" means software and interfaces, licensed by Quanser from a third party for incorporation into the QDEX Mobile App and QDEX Web Platform and distributed as a part of the QDEX Mobile App.
“Tools” means the authoring and management tools and associated templates, widgets, and libraries that are included in the QDEX Web Platform.
2. Grant of Licence
Subject to the terms and conditions herein, and the terms and conditions in any applicable order form (“Order Form”), this Agreement grants You a limited, non-sublicensable, non-exclusive, non-transferable right to install, run, and use a copy of the QDEX Mobile App on a Handheld Product, and QDEX Create. The QDEX Mobile App is licensed, not sold.
The Order Form is a separate document, referring to the Agreement. The Order Form may specify the right to use the QDEX Web Platform and Content, as well as user restrictions (such as a number of authorized users)
If You are acquiring Content and the QDEX Mobile App on a subscription basis or as part of a free trial, then the license rights set out above apply only for the time period for which You have paid the requisite subscription fees or for the time period authorised by Quanser or its authorised distributor, as the case may be.
In all cases, the license(s) granted under this Agreement, only permit You to use the QDEX Software Bundle or to access the QDEX Web Platform only for Your own internal or personal purposes unless otherwise specified in Your Order Form.
Updates and Upgrades. This Agreement and the licenses granted herein, do not imply any rights or entitlement to future upgrades or updates of the Quanser QDEX Solution. Notwithstanding the foregoing, the QDEX Software Bundle may include functionality to automatically check for updates or upgrades to the Quanser QDEX Solution, and You may be required to update QDEX Software Bundle or Third Party Components in order to continue to access or use the QDEX Mobile App, the Third Party Components, the QDEX Web Platform, QDEX CREATE, and Content. Quanser may (but is not obligated to) make updates or upgrades available to You from time-to-time. Any updates or upgrades provided to You by Quanser under this Agreement shall be considered Quanser QDEX Solution or Third Party Components, as the case may be. For clarify, Quanser may at any time, modify the functionality of the QDEX Mobile App, QDEX CREATE and/or the QDEX Web Platform via upgrade, update, or otherwise at any time in its sole discretion.
Beta Products. If the Quanser QDEX Solution is identified as pre-commercial, evaluation, "alpha" or "beta" software ("Beta Software"), the license rights set out above with respect to Your use of such Beta Software apply only for the time period authorised by Quanser ("Test Period") and solely to the extent necessary to enable You to test and provide Feedback to Quanser regarding the Beta Software. Such license will automatically terminate upon the expiration of the Test Period, which period may be extended or terminated by Quanser at any time, in its sole discretion, but, unless You are in breach of this Agreement, Quanser will, if feasible, use commercially reasonable efforts to provide You with prior notice of any change to the duration of the Test Period. Notwithstanding the Test Period, You acknowledge and agree that Quanser may include technical measures in the Beta Software that render it inoperable after a specified period of time and You agree that You will not circumvent such technical measures, nor attempt to do so. In consideration of the grant of license to the Beta Software, You agree that You will provide Quanser with Feedback on Beta Software as Quanser reasonably requests, including ongoing feedback regarding bugs and faults experienced during the Test Period, without any compensation or reimbursement of any kind from Quanser, and that the Section below entitled "Feedback" will apply to such Feedback. Quanser may specifically request that You complete a survey related to Beta Software and You agree to complete any such surveys. YOU ACKNOWLEDGE AND AGREE THAT ALL TESTING, EVALUATION, AND USE OF BETA SOFTWARE IS DONE ENTIRELY AT YOUR OWN RISK.
3. Ownership and Limits to Use
You do not acquire any ownership right, title or interest in or to any intellectual property or other proprietary rights, including patents, designs, trademarks, copyright, database rights or rights in any confidential information or trade-secrets, in or relating to Your QDEX Software Bundle and QDEX Web Platform, including Content that is made available by Quanser or through the Quanser QDEX Solution. You also do not acquire any license rights in or related to Your QDEX Software Bundle and QDEX Web Platform, or in any Content made available to You by Quanser or through the Quanser QDEX Solution, other than the rights expressly licensed to You under this Agreement, in the associated Documentation, or in another mutually agreed upon written agreement that You may have with Quanser. Quanser expressly reserves all rights with respect to the Quanser QDEX Solution and Documentation not expressly granted by this Agreement. You acknowledge that this Agreement shall provide to You only a limited license as set forth herein during the term of this Agreement.
4. Rules of Use for QDEX Mobile App
You are responsible for all activities with respect to Your QDEX Software Bundle undertaken by You and You will ensure that:
a) You only use the QDEX Software Bundle in accordance with this Agreement, all applicable laws and regulations, and the applicable Documentation for the QDEX Software Bundle;
(b) You have the right and authority to enter into this Agreement, either on Your own behalf or on behalf of a minor, and You are over the age of majority;
(c) Any information that is provided to Quanser pursuant to this Agreement is true, accurate, current, and complete, and so long as You continue to use the QDEX Software Bundle or maintain an account, You will update such information to keep it true, accurate and complete;
(d) You do not knowingly, after making such inquiries as a reasonable person in Your position would undertake, use or permit others to use the QDEX Software Bundle in a manner that in Quanser's judgment, acting reasonably, interferes with, degrades or adversely affects any software, hardware, system, network, Content, or service, including any part of Your or any other end user’s Quanser QDEX Solution, used by any person, including Quanser, or otherwise has a detrimental effect upon Quanser, and You will immediately cease any such activity upon Quanser delivering notice of same to You;
(e) You do not use the QDEX Software Bundle to transmit, publish, post, upload, distribute or disseminate any inappropriate, profane, harassing, abusive, defamatory, libellous, obscene, illegal or deceptive Content.
(f) You do not use the QDEX Software Bundle to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including uploading, collecting, storing, posting, transmitting, communicating or otherwise making available any information or material that You do not have a right to collect, store or make available, including under any law or under contract or in violation of any duty, in breach of privacy rights or laws, illegal gambling, or any act that would infringe, violate or misappropriate any intellectual property rights and/or other proprietary rights of any third party (including copying and sharing software or Content for which You do not have the rights to copy and share, or unlawfully circumventing any digital rights management protections);
(g) You do not use the QDEX Software Bundle to upload, post, email, transmit, or otherwise make available any software or Content that contains any (i) virus, Trojan horse, worm, backdoor, shutdown mechanism, malicious code, sniffer, bot, dead drop mechanism, or spyware; or (ii) any other software or Content likely or intended to (A) have an adverse impact on the performance of, (B) disable, corrupt, or cause damage to, or (C) cause or facilitate unauthorized access to or deny authorized access to, or cause to be used for any unauthorized or inappropriate purposes, any software, hardware, services, systems, or data ("Malware") (and, if You become aware of the existence of any Malware in or relating to the QDEX Software Bundle, You will promptly notify Quanser);
(h) You do not sell, rent, lease, or transfer, or attempt to sell, rent, lease, or transfer, the QDEX Software Bundle or any Content, or any part thereof, made available to You to any other person;
(i) You do not attempt to gain unauthorised access to the QDEX Software Bundle or other accounts, through hacking, password mining or any other means, or obtain or attempt to obtain any Content made available through the QDEX Software Bundle through any means not intentionally made available to You;
(j) You do not use the QDEX Software Bundle to impersonate any person or entity, or falsely state or otherwise misrepresent Your affiliation with a person or entity, or create a false identity to mislead others, including phishing and spoofing;
(k) You cooperate with Quanser and provide information requested by Quanser to assist Quanser in investigating or determining whether there has been a breach of this Agreement. You hereby authorise Quanser to cooperate with: (i) law enforcement authorities in the investigation of suspected criminal violations; (ii) third parties in investigating acts in violation of this Agreement; and (iii) system administrators at Internet service providers, networks or computing facilities in order to enforce this Agreement. Such cooperation may include Quanser disclosing Your username, IP address, or other personal information; and
(l) You may not modify, create derivative works, or alter in any manner the QDEX Software Bundle or the Documentation (including translation or localisation) or take part in any such an effort initiated by a third party.
5. Confidentiality and No Reverse Engineering
You acknowledge and agree that the QDEX Software Bundle was: (a) developed at considerable time and expense by Quanser; and (b) that the QDEX Software Bundle, QDEX Web Platform, and Beta Software contain confidential information including the trade-secrets of Quanser. Without limiting the foregoing, for Beta Software, confidential information includes the appearance, ‘look and feel’, performance, specifications, features and functionality of software, which information may not be discussed or shown to the public by You in any manner until publicly released by Quanser. This Agreement gives You no right to obtain from Quanser any source code for the QDEX Software Bundle and, except to the extent that Quanser is expressly precluded by law from prohibiting these activities, You agree that You will not alter, modify, adapt, create derivative works, translate, deface, or Reverse Engineer the QDEX Software Bundle or attempt to do so, or permit, acquiesce, authorise or encourage any other party to do the same. For the purpose of this Agreement, "Reverse Engineer" includes any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing (including any aspect of "dumping of RAM/ROM or persistent storage", "cable or wireless link sniffing", or "black box" reverse engineering) data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service, or hardware or any method or process of obtaining or converting any information, data or software from one form into a human-readable form.
6. Required Handheld Product and Airtime Service
You are responsible for ensuring that the Handheld Product and wireless network airtime services with which You choose to operate Your Quanser QDEX Solution meets Quanser's minimum requirements required for Your Quanser QDEX Solution as set out in the Documentation.
7. Additional Terms
You may be required to agree to additional terms and conditions with Quanser in relation to Third Party Components (e.g. open source components) and in order to use certain Content. With respect to Third Party Components made available to You by Quanser, if the Third Party Components are not accompanied by a separate license or terms of service, its use shall be subject to the terms and conditions of this Agreement as though it were the QDEX Software Bundle that forms part of Your Quanser QDEX Solution; provided that such Third Party Components is provided to You by Quanser “AS IS” and “AS AVAILABLE”, with no express or implied conditions, endorsements, guarantees, representations or warranties, and as between You and Quanser, the limitations and exclusions of liability and disclaimers set out in this Agreement shall apply, but the refund provisions set out in this Agreement shall not apply.
8. Your Materials and Other Content
(a) Feedback. You may provide feedback to Quanser about the QDEX Software Bundle and the Quanser QDEX Solution. Unless Quanser otherwise agrees in writing, You hereby agree that Quanser shall own all feedback, comments, suggestions, ideas, concepts and changes that You provide to Quanser regarding 'Your Quanser QDEX Solution and all associated intellectual property rights (collectively the "Feedback") and You hereby assign to Quanser all of Your right, title and interest thereto. You will not knowingly provide Quanser any Feedback that is subject to third party intellectual property rights. You agree to cooperate fully with Quanser with respect to signing further documents and doing such other acts as are reasonably requested by Quanser to confirm that Quanser owns the Feedback and to enable Quanser to register and/or protect any associated intellectual property rights and/or confidential information.
(b) Your Materials, Content. You, and not Quanser, are entirely responsible for Your Materials. Quanser does not control Your Materials and the Content that are made available to You in connection with the Quanser QDEX Solution, and in addition to the disclaimers herein, Quanser does not guarantee the accuracy, integrity, or quality of, and is not liable for Your Materials and any Content. Quanser may establish general practices and limits concerning use of the QDEX Software Bundle, including, the volume of Your Materials and Content that may be stored, the maximum period of time during which Your Materials and the Content or message/discussion board postings will be retained, and/or the period of time during which You may continue to use or access Your Materials and any Content. You agree that Quanser has no responsibility or liability whatsoever for the loss, deletion of, unauthorized access, or failure to store Your Materials and any Content and, provided You have the necessary rights or licenses to do so, You should keep an alternative back-up copy of Your Materials and any Content for which retaining a copy is important for You.
(c) Your Materials. Other than as expressly provided in this Agreement or an addendum thereto, this Agreement does not transfer any ownership of Your Materials to Quanser. With respect to Your Materials that You make available for inclusion on publicly accessible web sites or other publicly accessible aspects of the Quanser QDEX Solution, You grant Quanser a worldwide, perpetual, irrevocable, transferable, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Materials as is reasonable in connection with the provision and management of the Quanser QDEX Solution and You warrant and covenant that You have the right to grant to Quanser such a license.
(d) Objectionable Content. You understand that by using the QDEX Software Bundle, You may be exposed to Content that is, or that You consider to be, offensive, indecent, or otherwise objectionable. Quanser and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content from the Quanser QDEX Solution.
(e) Suspend Access or Terminate. You agree that from time to time Quanser may suspend access to the Quanser QDEX Solution or Content for indefinite periods of time or cease to make these available to You at any time, without notice to You, and You will have no recourse against Quanser should this occur. Except to the extent prohibited by law, Quanser reserves the right in its sole discretion, and at any time, for any reason and without notice to You, to change, suspend, remove, disable, limit, preclude or terminate Your access to the QDEX Software Bundle, QDEX Web Platform, and/or Content and You will have no recourse against Quanser should this occur.
(f) Monetizing Your Materials. Quanser does not monetize Your Materials. You may however, monetize Your Materials, using Your own payment mechanism. Quanser has no responsibility and accepts no liability for this activity. Notwithstanding this Section 8(g), You may not commercialize Your Material uploaded to the Quanser QDEX Solution without Quanser’s consent, which shall not be unreasonably withheld.
9. Security, Accounts and Passwords
You agree to assume full responsibility for the establishment of appropriate security measures to control access to Your Handheld Product. Without limiting the foregoing, You agree to choose strong passwords, and to maintain the security and confidentiality of all passwords used to access Your Quanser QDEX Solution or any portion thereof, including passwords used to access any account established in connection with Your Quanser QDEX Solution. You further agree that You are responsible for all activity that occurs using Your passwords, or on or through Your accounts, including all financial charges or other liability incurred in respect of such activity. You agree to immediately notify Quanser of any unauthorized use of all or any portion of Your Quanser QDEX Solution, including any passwords for any portion of the QDEX Software Bundle, by contacting Quanser Customer Support (email@example.com). Quanser may take such actions that it deems appropriate following receipt of such notification, but has no obligation to take any action. You agree that notifying Quanser as set out above does not relieve You of responsibility for all activity that occurs using Your passwords, or on or through Your accounts.
This Agreement shall be effective upon Your agreeing to be bound by the terms and conditions of this Agreement (as described in the preamble above) and shall continue in effect unless terminated in accordance with the provisions set out herein.
11. Remedies and Termination
In addition to any other of Quanser’s rights or remedies set forth in this Agreement:
(a) If You breach this Agreement, Quanser or its agent may, but is not obligated to, take certain actions they deem appropriate. Such actions may include temporary or permanent removal of Your Materials and Content and/or the immediate suspension or termination of all or any portion of Your Quanser QDEX Solution.
(b) Quanser may, in addition to all other rights and remedies provided by this Agreement or by law, immediately terminate this Agreement and any other license agreement between You and Quanser for any other portion of Your Quanser QDEX Solution used by You if You breach this Agreement, or any Addendum or other agreement You have in effect with Quanser, including, by failing to pay any fees within thirty (30) days of their becoming due and payable. Where You have provided Quanser with accurate contact information, Quanser shall use reasonable commercial efforts to provide You with notice of termination.
(d) In addition, Quanser may terminate this Agreement and/or immediately cease to provide the Quanser QDEX Solution without any liability whatsoever to You if Quanser is prevented from providing any portion or all of the Quanser QDEX Solution by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body, or if a notice from a government agency or department indicates Quanser is not permitted to provide any portion or all of the Quanser QDEX Solution. Nothing herein shall be construed to require Quanser to seek a waiver of any such law, rule, regulation, or restriction, or seek judicial review or appeal of any court order.
(e) Except as expressly provided herein, Quanser shall not have any liability to You arising from or related to the termination of this Agreement, or any rights or licenses granted herein, in accordance with this Agreement.
(f) Any termination under this Agreement by Quanser will be effective without Quanser obtaining any judicial or administrative consent, approval or resolution whatsoever in Your jurisdiction.
12. Effect of Termination
Upon termination of this Agreement or the provision of the Quanser QDEX Solution to You, however caused, or if Your subscription or a free trial for the Quanser QDEX Solution expires, or the Test Period for Beta Software expires or is terminated: (a) You will immediately discontinue all use of the QDEX Software Bundle, or in the case where this Agreement is not terminated, the item(s) of QDEX Software Bundle including Content for which the license has been terminated or expired, and return all copies of such; and (b) Quanser shall have the right to block any transmission of data to and from the QDEX Software Bundle without notice to You. Upon termination of any account You may have with Quanser, You authorise Quanser to delete Your Materials, Content, any files, programs, data associated with such account, without notice to You. You shall remain liable for all amounts due up to and including the effective date of termination in relation to the affected Quanser QDEX Solution and Content, including amounts charged to Your authorized mode of payment. In the event of the termination of this Agreement by Quanser pursuant to provisions of this Agreement, You shall pay to Quanser all fees (including reasonable lawyers’ fees and costs) and related expenses expended or incurred by Quanser in the enforcement of its rights hereunder. Notwithstanding the foregoing, because of the nature of the QDEX Software Bundle, it may be impossible to return the QDEX Software Bundle. In such cases, please permanently delete the QDEX Software Bundle and Content from Your Handheld Product and computing platform.
13. Consent to Collection, Use, Processing, Transfer, Storage and Disclosure (collectively, “Process” or “Processing”) of Information
(a) Personal Information. Your installation and/or use of the QDEX Software Bundle may result in the Processing of personal information (as defined under applicable law) about You by Quanser and its service providers. Depending on the functionality used in the Quanser QDEX Solution, personal information may include information such as name, email address, telephone number, account credentials and settings, Handheld Product information (for example, Handheld Product identifiers), airtime service provider information, and information about the use of the Quanser QDEX Solution and Content. You consent that Quanser may collect such personal information from You directly.
14. User Data
In addition to any disclosures authorized by Section 13, You consent and agree that Quanser may access, preserve, and disclose Your data, including personal information, Materials, or information about the use of the Quanser QDEX Solution ("User Data"), to third parties, including foreign or domestic government entities, without providing notice to You under the laws of countries where Quanser and its service providers, other partners and affiliates are located in order to: (i) comply with legal process or enforceable governmental request, or as otherwise required by law; (ii) cooperate with third parties in investigating acts in violation of this Agreement or to enforce this Agreement.
15. Limitation of Liability
THE QDEX MOBILE APP AS WELL AS THE DOCUMENTATION IS PROVIDED TO YOU AS IS. QUANSER DISCLAIMS ALL LIABILITY AND, OTHER THAN WHAT IS EXPRESSLY SET OUT IN THIS AGREEMENT, QUANSER OFFERS NO WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED, RELATING TO THE USE, PERFORMANCE OR RESULTS THAT MAY BE OBTAINED THROUGH THE USE OF THE QDEX MOBILE APP AND DOCUMENTATION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL QUANSER BE HELD LIABLE FOR ANY LOSS OR DAMAGE, DIRECT OR INDIRECT, CONSEQUENTIAL OR INCIDENTAL RESULTING FROM THE USE OF THE QDEX MOBILE APP, THE QDEX WEB PLATFORM, YOUR MATERIALS, CONTENT, THIRD PARTY COMPONENTS, AND DOCUMENTATION, INCLUDING, WITHOUT LIMITING THE PRECEDING, THE LOSS OR ALTERATION OF DATA, LOSS OF PROFIT, INTERRUPTION OF BUSINESS AND LOSS OF EMPLOYEE WORK TIME. THIS EXCLUSION OF THE LIABILITY OF QUANSER WILL PREVAIL EVEN WHEN YOU ADVISE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN ANY CASE, QUANSER’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED THE SUM OF THE FEES YOU PAID FOR THIS LICENCE (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF QUANSER TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. QUANSER IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF MATERIALS OR CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE QDEX MOBILE APP AND/OR ANY INFORMATION LINKED THROUGH SUCH MATERIALS OR CONTENT.
16. Representations of Distributor
Quanser represents for Your benefit that:
a) it is duly authorised by Quanser and holds all rights necessary to execute this Agreement and there are no legal, judicial or contractual limitations preventing its execution; and
b) the QDEX Mobile App and the Documentation are original works that, to Quanser’s knowledge, do not violate any copyright.
Quanser does not warrant that the Quanser QDEX Solution will meet your requirements, be error free, or operate without interruptions. You acknowledge that the Quanser QDEX Solution operates in an environment that includes software and hardware of Third Party vendors and that Quanser does not control the products of Third Party vendors.
You have ninety (90) days from the receipt of this licence to report any defect in the Quanser QDEX Solution. In such an event, Quanser will, at no cost to You, endeavor to have programming errors corrected if possible, and deliver to You a functional version of the Quanser QDEX Solution. This obligation exists only if You provide at all relevant times the facilities described in this Agreement.
During this warranty period, to identify and resolve any problems relating to the Quanser QDEX Solution, refer to the Documentation for the applicable contact details for reporting such problems.
Notwithstanding the preceding, You are not entitled to the warranty if You modify elements of the Quanser QDEX Solution without the prior written authorisation of Quanser, if You do not follow the instructions found in the Documentation, or if You breach the terms and conditions of this licence.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THOSE CONCERNING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
18. Severability; Entire Agreement
If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement and any additional licenses accompanying the Quanser QDEX Solution constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements with respect to the Quanser QDEX Solution. Except as expressly set forth herein, any amendment of any provision of this Agreement shall be effective only if in writing and signed by authorized representatives of both parties.
19. Governing Law
This Agreement will be governed by and construed in accordance with the laws of the province of Ontario. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. Any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof, which the Parties are unable to resolve after good faith negotiations, shall be submitted first to the upper management level of Quanser and You. You and the upper management of Quanser shall meet within thirty (30) days of the dispute being referred to them and if the Parties are unable to resolve such disagreement or dispute within thirty (30) days of meeting, except to the extent specifically prohibited by applicable law in Your jurisdiction, such disagreement or dispute shall be settled by final and binding arbitration to be conducted in Ontario, Canada in accordance with the Commercial Rules of the American Arbitration Association ("Rules") and shall be heard by one arbitrator appointed in accordance with the said Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. If the provisions of the foregoing are prohibited by law in Your jurisdiction, the arbitration shall be: (i) held in Your jurisdiction; (ii) settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce ("ICC Rules"); and (iii) heard by one arbitrator appointed in accordance with the ICC Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. Each Party shall bear one half of the costs associated with the arbitration proceedings. No dispute between the Parties, or involving any person but You, may be joined or combined together, without the prior written consent of Quanser. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, Quanser has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding: (i) amounts owed by You to Quanser in connection with Your acquisition of Your QDEX Mobile App; and (ii) Your violation or threatened violation of the Sections of this Agreement entitled “Grant of License” (Section 2), “Ownership and Limits to Use” (Section 3), "Rules of Use for Your QDEX Mobile App" (Section 4), "Confidentiality and No Reverse Engineering" (Section 5), "Security, Accounts and Passwords" (Section 9), "Effect of Termination" (Section 12), and "Export Controls” (Section 20). You irrevocably waive any objection on the grounds of venue, forum non conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the City of Toronto, Ontario for any such claims arising from or related to this Agreement. The Parties specifically agree that, in the event that there is a dispute under this Agreement and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial. The Parties hereby waive all rights to a trial by jury in any matter related to or arising from this Agreement. If You are any agency of the government of the United States of America, then Your rights in respect of the QDEX Mobile App shall not exceed the rights provided under this Agreement, unless expressly agreed upon by Quanser in a written agreement between You and Quanser and signed by the Chief Executive Officer of Quanser.
20. Export Controls
You agree that You will not export or re-export any of the Quanser QDEX Solution or Confidential Information received from Quanser except in compliance with the applicable laws and regulations of the relevant government authorities. You also agree that You will not use the Quanser QDEX Solution for any purposes prohibited by applicable law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You represent that to the best of Your knowledge, You are eligible to receive the Quanser QDEX Solution under applicable law. You certify that You will not transfer or export any product, process or service that is a direct product of the Quanser QDEX Solution.
21. No Waiver or Assignment.
No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Quanser, and no single waiver will constitute a continuing or subsequent waiver. This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns. You may not assign this Agreement or the rights and obligations herein without the prior written consent of Quanser. Quanser may assign this Agreement to an affiliate or purchaser of the business or assets associated with the Quanser QDEX Solution.
The parties confirm hereby that they each require that this Agreement and all documents and notices in connection therewith be drawn up in English.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
Effective Date: November 27, 2018