END-USER LICENSE AGREEMENT AND TERMS OF SERVICE
This END-USER LICENSE AGREEMENT AND TERMS OF SERVICE (the “Agreement”) constitutes a legal agreement between you (“Client,” “you,” or “your”), and Qstrom, LLC™ (“Qstrom,” “we,” “our,” or “us”) governing your use of Qstrom’s proprietary District Manager® (“DM”) software, system, and associated services for income maximization and auditing software designed specifically for the self-storage industry. This Agreement shall also govern your use of Qstrom’s proprietary Dynamic Revenue Management® (“DRM®”) software, What Your Customer Can Afford™ (“WYCCA™”) and associated services to the extent that you elect to license such software and accept such services from Qstrom. Qstrom desires to license its proprietary software and system to Client and to provide related professional services to Client, and Client desires to license such system and software from Qstrom and to obtain related professional services from Qstrom, in accordance with the terms and conditions set forth in this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING, OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. CLIENT AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CLIENT. THIS AGREEMENT IS ENFORCEABLE AGAINST CLIENT. IF CLIENT DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLIENT MAY NOT USE THE SOFTWARE.
In consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
As used in this Agreement, the following terms shall have the following meaning:
“Client” means you and any legal entity that obtained or uses the Software and on whose behalf it is used; as well as any of your employees, members, officers, owners, representatives, consultants, contractors, or agents who are authorized to use the Software and have been supplied user identifications and passwords by Client (or by Qstrom at Client’s request).
“Client Data” means any data, information, or material provided or submitted by Client to the Software, or otherwise collected from the Client by the Software. “Non-Proprietary Client Data” means any information, data, or material provided by Client or generated by Qstrom in association with the account and facility registration process, user login credentials, and account invoices.
“Computer” means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions, including without limitation desktop computers, laptops, tablets, mobile devices, telecommunication devices, smart televisions, Internet-connected devices, and hardware products capable of operating a wide variety of productivity, entertainment, or other software applications.
“Effective Date” means the date the terms of this Agreement become effective.
“Intellectual Property Rights” means any unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, knowhow and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“License Term(s)” means the period(s) during which the Client is licensed to use the Software.
“Order Form(s)” means the form evidencing the initial subscription for the Software and any subsequent order forms submitted online or in written form, specifying, among other things, the number of facilities and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).
“Other Services” means third party products, applications, services, software, networks, systems, directories, websites, databases, and information to which the Software links to, or which you or your Computers may connect to or enable in conjunction with the Software.
“Qstrom” means Qstrom, LLC, a Texas limited liability company, having a principal place of business at 15400 Knoll Trail Drive, Suite 106, LB 42, Dallas, Texas 75248, U.S.A.
“Qstrom Technology” means all of Qstrom’s proprietary technology (including software files, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Client by Qstrom in providing the Software.
“Software” means (a) all of the information with which this agreement is provided, including but not limited to: (i) all software files and other computer information, whether downloaded from Qstrom or otherwise accessed or implemented from Qstrom over a network; (ii) related explanatory written materials and files (“Documentation”); (iii) any modified versions and copies of, and upgrades, updates, and additions to, such information, provided to Client by Qstrom at any time, to the extent not provided under separate terms (collectively, “Updates”); and any services provided by Qstrom associated in any way with the foregoing items.
In this Agreement, unless otherwise expressly indicated or required by the context: (a) the words “including” or “includes” shall be deemed to mean “including without limitation” and “including but not limited to” (or “includes without limitation” and “includes but is not limited to”) regardless of whether the words “without limitation” or “but not limited to” actually follow the term; (b) the words “hereof,” herein” and “hereunder” and words of similar import shall refer to this Agreement and any exhibits as a whole and not to any particular provision hereof or thereof, as the case may be; (c) no inference in favor of, or against, any party shall be drawn from the fact that one party has drafted all or any portion of this Agreement; and (d) the normal rule of construction that any ambiguities are to be resolved against the drafting party shall not be applied to the interpretation of any terms and conditions.
2. License Grant and Restrictions
During the License Term, Qstrom hereby grants Client, a nonexclusive, nontransferable, worldwide right to use the Software, solely for Client’s own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Client are reserved by Qstrom. Client may not access the Software if Client is a direct competitor of Qstrom, except with Qstrom’s prior written consent. In addition, Client may not access the Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Qstrom reserves all rights not expressly granted herein.
Client shall not (i) license, sublicense, rent, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Software in any way; (ii) modify or make derivative works based upon the Software; (iii) create Internet “links” to the Software; or (iv) reverse engineer or access the Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Software, (c) copy any ideas, features, functions or graphics of the Software, or (d) for the purposes of investigating possible patent infringement. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Software.
Client may use the Software only for Client’s internal business purposes and shall not: (i) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (ii) interfere with or disrupt the integrity or performance of the Software or the data contained therein; (iii) use the Software for data mining; (iv) use the Software in a manner that adversely impacts the stability of Qstrom’s Computers or adversely impacts the behavior of other applications using the Software or Qstrom’s Computers; (v) attempt to cloak or conceal the identity of a user of the Software; (vi) circumvent Qstrom’s right to restrict usage of the Software to the extent that such use is not in compliance with the terms of this Agreement; (vii) use the Software to create or update a database of business information associated with other users of the Software; (viii) cache, record, prefetch, or otherwise store any portion of the Software or Client Data; (ix) operate or use the Software in a manner that conflicts with the interests of Qstrom, or in a manner detrimental to the reasonable business interests of Qstrom, or in conflict with the services provided by Qstrom; or (x) attempt to gain unauthorized access to the Software or its related systems or networks.
During the License Term, Client hereby grants to Qstrom a non-exclusive, worldwide, fully-paid, royalty-free limited license to: (a) access Client’s Computers in connection with, and for purposes of providing, the Software; and (b) collect, compile, reproduce, process, store, and combine Client Data.
3. Client Responsibilities
Client is responsible for all activity occurring under Client’s user accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Client’s use of the Software, including those related to data privacy, international communications, and the transmission of technical or personal data. Client shall: (i) notify Qstrom immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Qstrom immediately and use reasonable efforts to stop immediately any copying or distribution of the Software that is known or suspected by Client; and (iii) not impersonate another Qstrom user or provide false identity information to gain access to or use the Software.
Client acknowledges that DM and DRM may be used in two or more forms – including “Viewer Installation” and “Facility Installation.” Client further acknowledges that “Viewer Installation” enables a user to have access to potentially more sensitive Client Data as compared to use in “Facility Installation” form. Client agrees that it assumes all responsibility for determining the appropriate form of DM/DRM/WYCCA to be provided to its employees, officers, agents, and/or other persons authorized to use the Software on its behalf. In no event shall Qstrom bear any responsibility or liability for Client’s choices regarding the person(s) to whom access to the Software is authorized.
Client is also responsible for ensuring that all of its personnel authorized to use the Software on its behalf have sufficient knowledge and experience to use the Software. In no event shall Qstrom bear any responsibility or liability for damage or injury resulting from the acts of person(s) to whom the Client has authorized access to the Software.
4. Account Information and Data
Qstrom does not own any Client Data. Client, not Qstrom, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data, and Qstrom shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data. In the event this Agreement is terminated, all Client Data, other than Non-Proprietary Client Data, will be destroyed by Qstrom. Qstrom reserves the right to withhold, remove, and/or discard Client Data and any other data generated as a result of use of the Software without notice for any breach, including, without limitation, Client’s non-payment. Upon termination of this Agreement, Client’s right to access or use Client Data and any other data generated as a result of use of the Software, immediately ceases, and Qstrom shall have no obligation to maintain or forward any Client Data or other data generated as a result of use of the Software.
5. Intellectual Property Ownership
Qstrom shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Qstrom Technology, the Software and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or any other party relating to the Software. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Software, the Qstrom Technology or the Intellectual Property Rights owned by Qstrom. Qstrom’s name, Qstrom’s logo, and the product names associated with the Software (“DISTRICT MANAGER®”, “DYNAMIC REVENUE MANAGEMENT®”, “DRM®”, “STORAGE INCOME PROS™”, “WHAT YOUR CUSTOMER CAN AFFORD™”, and “WYCCA™”) are trademarks of Qstrom, and no right or license is granted to use them.
This Effective Date of this Agreement is the date of Client’s first use of the Software, or the date the Client first indicates acceptance of the terms of the Agreement, whichever is earlier.
a. District Manager (District Manager LITE). The Initial Term associated with the District Manager Software, if not used in conjunction with Dynamic Revenue Management Software, is one (1) calendar month from the Effective Date unless otherwise specified and agreed to by both parties in the Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive one-month terms at Qstrom’s then current fees.
b. District Manager + Dynamic Revenue Management (District Manager PRO). The Initial Term associated with the District Manager Software used in conjunction with the Dynamic Revenue Management Software and associated services is one (1) calendar year unless otherwise specified and agreed to by both parties in the Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive one-year terms at Qstrom’s then current fees.
c. What Your Customer Can Afford (WYCCA). The Initial Term associated with the What Your Customer Can Afford Software is one (1) calendar month from the Effective Date unless otherwise specified and agreed to by both parties in the Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive one-month terms at Qstrom’s then current fees.
7. Charges and Payment of Fees
Client shall pay all fees or charges to Client’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total facilities serviced by the Software times the license fee currently in effect. To the extent that Client initially begins use of the Software in a 30-day (or other agreed-upon time period) “evaluation” period, and Client subsequently orders a license for the Initial Term, Client shall be obligated to pay the then current fees for such evaluation period. Under such circumstances, the evaluation period shall be included in computing the Initial Term according to the terms set forth herein. There is no “evaluation” period for What Your Customer Can Afford (WYCCA) and the Client shall be obligated to pay the then current fees immediately upon ordering a license for the Initial Term.
Payments must be made monthly unless otherwise mutually agreed upon in an Order Form. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Client is responsible for paying for the license(s) ordered for the entire License Term, whether or not such license(s) are actively used. Client must provide Qstrom with valid credit card, check, or valid banking information necessary for conducting ACH transactions as a condition to signing up for use of the Software. Qstrom reserves the right to modify its fees and charges and to introduce new charges at any time, upon notice to Client at least 30 days prior to the expiration of the License Term, which notice may be provided by email. All pricing terms are confidential, and Client agrees not to disclose them to any third party. TIME IS OF THE ESSENCE WITH RESPECT TO ANY PAYMENTS DUE FROM CLIENT HEREUNDER.
8. Billing and Renewal
Qstrom typically charges and collects during the first week of each calendar month for use of the Software but, at Qstrom’s sole discretion, such charging and collection activities may be delayed. Qstrom will automatically issue an invoice to Client each month or as otherwise mutually agreed upon. All fees charged by Qstrom are due and payable upon receipt of invoice or as otherwise agreed in writing. There will be no refunds on implementation fees. The monthly renewal charge will be equal to the then-current number of total number of facilities serviced by the Software times the license fee in effect during the prior term, unless Qstrom has given Client at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Qstrom’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all such taxes, levies, or duties, excluding only U.S. (federal or state) taxes based solely on Qstrom’s income.
a. District Manager (District Manager LITE) Month-to-month Your initial payment is due at the beginning of the following month of the end of your “evaluation” period. Your subscription will continue without renewal notice until you cancel. Should you cancel, your payment is non-refundable, and your service will continue until the end of that month’s billing period. Because there’s no annual contract, your monthly rate is subject to change, but you will be emailed a notification of any change in your monthly rate with the option to cancel in accordance with these terms. Multi-Month, Annual and Multi-Annual Term, prepaid Your initial payment is due at the beginning of the following month of the end of your “evaluation” period. You’ll be charged the agreed upon rate stated at the time of purchase as one lump sum, plus applicable taxes. Your contract will renew automatically, on your renewal date, until you cancel. Renewal rates are subject to change, but you will be notified of any change in your rate with the option to cancel in accordance with these terms. Should you cancel, your payment is non-refundable and your service will continue until the end of your contracted term.
b. District Manager + Dynamic Revenue Management (District Manager PRO) with or without the addition of other services Annual contract, paid monthly Service begins as soon as your initial payment is processed. You’ll be charged the rate stated at the time of purchase, plus applicable taxes (such as value added tax when the stated rate doesn’t include VAT), every month for the duration of your annual contract. If the applicable VAT rate (or other included tax or duty) changes during your one-year term, the tax-inclusive price will adjust accordingly. Your contract will renew automatically, on your annual renewal date, until you cancel. Renewal rates are subject to change, but you will be notified of any change in your rate with the option to cancel in accordance with these terms. Should you cancel, your payment is non-refundable and you are still obligated to make your future payments until the contract is complete. Your service will continue until the end of the contracted term. Annual contract, prepaid Service begins as soon as your payment is processed. You’ll be charged the annual rate stated at the time of purchase as one lump sum, plus applicable taxes. Your contract will renew automatically, on your annual renewal date, until you cancel. Renewal rates are subject to change, but you will be notified of any change in your rate with the option to cancel in accordance with these terms. Should you cancel, your payment is non-refundable and your service will continue until the end of your contracted term.
c. What Your Customer Can Afford (WYCCA) Month-to-month Service begins as soon as your initial payment is processed. Your subscription will continue without renewal notice until you cancel. Should you cancel, your payment is non-refundable, and your service will continue until the end of that month’s billing period. Because there’s no annual contract, your monthly rate is subject to change, but you will be emailed a notification of any change in your monthly rate with the option to cancel in accordance with these terms.
Client agrees to provide Qstrom with complete and accurate billing and contact information. This information includes Client’s legal company name, street address, email address, and name and telephone number of an authorized billing contact. Client agrees to update this information within 30 days of any change to it. If the contact information Client has provided is false or fraudulent, Qstrom reserves the right to terminate Client’s access to the Software in addition to any other legal remedies.
If Client believes its bill is incorrect, Client must contact Qstrom in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. Nonpayment and Suspension
Qstrom reserves the right, without notice and in our sole discretion, to terminate your account, block use of the Software, and to block or prevent your future access to and use the Software for nonpayment.
a. District Manager (District Manager LITE) and District Manager + Dynamic Revenue Management (District Manager PRO) with or without the addition of other services.
In the event Client fails to pay any fees when due, Qstrom may, at its election email a written notice that will include a grace period of Qstrom’s choosing (the “Delinquency Notice”) before the Client’s account is terminated, and suspend use of the Software until such time as Client has paid all outstanding invoices (such period, the “Suspension Period”). During the Suspension Period, (i) Qstrom shall have no obligations to Client regarding the Software; and (ii) Client will continue to be charged the applicable license fee(s). If Client or Qstrom initiates termination of this Agreement, Client will be obligated to pay the balance due on Client’s account. Client agrees that Qstrom may bill Client for such unpaid fees.
a. What Your Customer Can Afford (WYCCA)
In the event Client fails to pay any fees when due, Qstrom automatically suspends use of the Software immediately until such time as Client has updated their payment information. Notice is only given at the time the Software is accessed. Qstrom may elect to give additional notice. Qstrom reserves the right to impose a reconnection fee in the event Client is suspended and thereafter request access to the Software. Client agrees and acknowledges that Qstrom has no obligation to retain Client Data and that such Client Data may be irretrievably deleted without notice.
10. Termination upon Expiration/Reduction in Number of Facilities
Either party may terminate this Agreement or reduce the number of licensed facilities, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the License Term. In the case of trial uses of the Software, notifications provided through the Software indicating the remaining number of days in the free trial shall constitute notice of termination. Termination will not entitle you to any refund of paid subscription fees, whole or in part.
11. Termination for Cause
Any breach of Client’s payment obligations or unauthorized use of the Qstrom Technology or Software will be deemed a material breach of this Agreement. Qstrom, in its sole discretion, may immediately terminate Client’s password, account and/or use of the Software if Client breaches or otherwise fails to comply with this Agreement. In addition, Qstrom may terminate a free account/demo trial at any time in its sole discretion. Client agrees and acknowledges that Qstrom has no obligation to retain the Client Data, and may delete such Client Data, if Client has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach. Termination will not entitle you to any refund of paid subscription fees, whole or in part.
Upon the termination or expiration of this Agreement for any reason, all rights granted to Client hereunder shall cease immediately. The provisions of Sections 5 (Intellectual Property Ownership), 14 (Indemnification), 16 (Disclaimer of Warranties), 18 (Limitation of Liability), 24 (Confidentiality), and 29 (General), as well as this Section 12 and the provisions of any other sections of this Agreement that expressly or by their nature contemplate surviving any termination or expiration of this Agreement, shall continue and survive in full force and effect.
13. Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Qstrom represents and warrants that it will provide the Software in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Software will perform substantially in accordance with the online Qstrom help documentation under normal use and circumstances. Client represents and warrants that Client has not falsely identified Client nor provided any false information to gain access to the Software and that Client’s billing information is correct.
Client shall indemnify and hold Qstrom and its affiliates, officers, members, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with your use of the Software, or your violation of these terms.
15. Third Party Services
Be advised that certain features of the Software require us to use, access, and transmit Client Data and other information associated with you to Other Services (as defined above). Providers of such Other Services include, for example, StorTrack (www.stortrack.com). We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data or any interaction between you and the provider of such Other Services. You irrevocably waive any claims against Qstrom with respect to such Other Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Other Services, or your reliance on the privacy practices, data security processes or other policies of such Other Services. By using the Software, you are expressly permitting Qstrom to disclose your Client Data to such Other Services as necessary to facilitate the use or enablement of the Software.
16. Disclaimer of Warranties
THE SOFTWARE AND ASSOCIATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND USE OF THE SOFTARE AND SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. NEITHER QSTROM (AS DEFINED ABOVE) NOR ANYONE ASSOCIATED WITH QTROM MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SOFTWARE OR ANY ASSOCIATED SERVICES. QSTROM DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE OR ITS PROVISION OF ASSOCIATED SERVICES WILL BE SECURE, RELIABLE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CLIENT THROUGH THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SOFTWARE, SERVER(S), AND/OR OTHER HARDWARE THAT MAKE THE SOFTWARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
17. Internet Delays
A CONSTANT STABLE HIGH SPEED LOW LATENCY INTERNET CONNECTION IS REQUIRED FOR PROPER OPERATION OF THE SOFTWARE. YOU ARE RESPONSIBLE FOR PROCURING AND MAINTAINING THE NETWORK CONNECTIONS THAT CONNECT YOUR COMPUTERS AND NETWORK TO THE SOFTWARE. QSTROM’S SOFWARE AND OTHER SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. QSTROM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
18. Limitation of Liability
IN NO EVENT SHALL QSTROM (AS DEFINED ABOVE) OR ANYONE ASSOCIATED WITH QSTROM BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL OF SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT CLIENT’S COMPUTER OR OTHERWISE IMPAIR CLIENT DATA, OR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, GOODWILL, USE, OR OTHER ECONOMIC ADVANTAGE, WHETHER OR NOT FORSEEABLE), BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE OR OTHER SERVICES PROVIDED BY QSTROM, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SOFTWARE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL QSTROM (AS DEFINED ABOVE) BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SOFTWARE OR SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN CLIENT’S JURISDICTION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS. CLIENT MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION AND OTHER LAWS. QSTROM DOES NOT SEEK TO LIMIT ITS WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW.
19. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential, or certain other types of damages, so the exclusions set forth above may not apply to Client.
20. Local Laws and Export Control
Qstrom provides and uses software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Client acknowledges and agrees that the Software and services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries on which the United States, Switzerland, and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Software, Client represents and warrants that Client is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Client agrees to comply strictly with all U.S., Swiss, and European Union export laws, and the export laws of any other jurisdiction where it may use the Software, and assume sole responsibility for obtaining licenses to export or re-export as may be required.
Qstrom makes no representation that the Software is appropriate or available for use in other locations. Client is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. None of the information acquired through the use of the Software, is or will be used for nuclear activities, chemical, or biological weapons, or missile projects, unless specifically authorized by the U.S. government or appropriate European body for such purposes.
Qstrom may give notice by means of a general notice on the Software, email to Client address on record in Qstrom’s account information, or by written communication sent by first class mail or pre-paid post to Client address on record in Qstrom’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Client may give notice to Qstrom (such notice shall be deemed given when received by Qstrom) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Qstrom at the following address:
Qstrom, LLC 15400 Knoll Trail Drive Suite 106, LB 42 Dallas, Texas 75248 U.S.A.
22. Modification to Terms
Qstrom reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software at any time, effective within 24 hours of the posting of an updated version of this Agreement at www.qstrom.com/end-user-license-agreement, www.storageincomepros.com/end-userlicense-agreement or www.wycca.com/end-user-license-agreement. Client is responsible for regularly reviewing this Agreement at www.qstrom.com/end-user-license-agreement, www.storageincomepros.com/end-user-license-agreement or www.wycca.com/end-user-licenseagreement. Continued use of the Software after any such changes shall constitute Client’s consent to such changes. Client agrees that electronic disclosures and notices including, but not limited to, the aforementioned electronic notification of modified terms and conditions of this Agreement, shall have the same meaning and effect as a paper copy. Such disclosures and notices in relation to this Agreement shall be considered to be received by Clients and other users of the Software within 24 hours of the time such notices and disclosures are posted to the Site.
23. Assignment; Change in Control
This Agreement may not be assigned by Client without the prior written approval of Qstrom but may be assigned without Client’s consent by Qstrom to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Client that results or would result in a direct competitor of Qstrom directly or indirectly owning or controlling 50 percent or more of Client shall entitle Qstrom to terminate this Agreement for cause immediately upon written notice.
“Confidential Information” means any technical, business, marketing, or other proprietary information (including specifications, diagrams, data, records, plans, computer code and programs, and documentation), and trade secrets, which may be or already has been furnished or disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), or acquired directly or indirectly by the Receiving Party from the Disclosing Party. “Confidential Information” also includes the terms of this Agreement and any other agreements and communications between the parties, all memoranda, notes, and documents relating to Confidential Information, and all copies and extracts of Confidential Information. Qstrom’s Confidential Information includes information and documentation related to the Software, Qstrom Technology, and Documentation. Confidential Information shall not include information which is: (a) generally known to the public (other than as a result of the fault of or breach of the Receiving Party); (b) independently developed by or rightfully in the possession of the Receiving Party without reference to or reliance on Confidential Information, as demonstrated by written records; or (c) obtained by the Receiving Party in good faith from a third party who did not thereby breach an obligation of confidence to the Disclosing Party, and who created or acquired such information without reference to or reliance on Confidential Information. The Receiving Party agrees to maintain the strict confidentiality of Confidential Information, including: (a) using at least the same degree of care which the Receiving Party uses to protect its own confidential or other similar information; (b) only disclosing Confidential Information to, and permitting Confidential Information to be disclosed to, employees, representatives, and agents of the Receiving Party who need access to Confidential Information to carry out the terms and intent of this Agreement and who are bound by confidentiality provisions at least as strict as those hereunder; and (c) using Confidential Information only in furtherance of the terms and intent of this Agreement. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information pursuant to any applicable law, or by order of any court or agency of competent jurisdiction; provided, however, that: (y) the Receiving Party shall give prompt notice to the Disclosing Party of any such proposed legally required disclosure; and (z) the Receiving Party shall cooperate with the Disclosing Party to protect the confidentiality of the Confidentiality Information by all means reasonably available.
Client agrees that Qstrom may reference Client’s status as a user of Qstrom’s Software on Qstrom’s website, in marketing materials, and in sales presentations. Qstrom may use Client’s trade names and trademarks in connection with such usage.
26. Force Majeure
Neither party will be liable for any default or delay in the performance of its obligations hereunder: (a) if and to the extent that such default or delay arises out of causes beyond its reasonable control, including default or delays of the other party, acts of God, acts of war, acts of governmental authority, acts of public energy, insurrection, earthquakes, fires, cable cuts, floods, terrorism, and riots (each, a “Force Majeure Event”) and (b) provided such default of delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing party through the use of alternative sources, work-around plans or other means. Upon the occurrence of a Force Majeure Event, each party shall be excused from further performance or observance of the obligation(s) affected so long as such circumstances caused by the Force Majeure Event prevail and the parties use their reasonable efforts to promptly recommence performance or observance of said obligation(s). The party claiming excuse by Force Majeure so affected in its performance will immediately notify the other by telephone (to be confirmed in writing within five days of the inception of the Force Majeure Event) and describe at a reasonable level of detail the circumstances causing such delay. Notwithstanding any other provision of this section, a Force Majeure Event shall not relieve Client of its obligations to pay monies due and owing to Qstrom hereunder.
27. Independent Contractors
Nothing in this agreement shall be construed to create an agency, joint venture, partnership or other form of business association between the parties. Neither party has the right or authority to make any contract, representation, or binding promise of any nature, on behalf of the other party and neither party shall hold itself out as having such right or authority.
28. No Waiver/Amendment
No failure of either party to exercise any of its rights hereunder solely due to delay or failure to exercise such rights shall constitute a waiver of any term or condition of this Agreement. This Agreement may only be amended or altered in writing.
This Agreement shall be governed by Texas law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Software shall be subject to the exclusive jurisdiction of the state and federal courts located in Dallas County, Texas, U.S.A.
Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Software or Documentation in violation of these terms you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. Client agrees that violation of any provision of this Agreement would cause the Qstrom irreparable injury for which it would have no adequate remedy at law, and that Qstrom will be entitled to immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it. The Client also waives any requirement for the posting of a bond by Qstrom in an action for specific performance, or for a temporary or permanent injunction, to enforce this Agreement.
If you have any questions regarding this Agreement or if you wish to request any information from Qstrom, please use the address and contact information appearing above to contact Qstrom.
Last Updated: April 16, 2018