Entering into this Agreement: This End User License Agreement constitutes a valid and binding agreement between Qumana Software Inc. and You, as a user, for the use of the Qumana Software. You must enter into this Agreement by clicking on the ACCEPT button in order to install and use the Qumana Software. You hereby agree and acknowledge that this Agreement covers all Your use of Qumana Software, whether it be from this installation or from any other terminals where Qumana Software has been installed, by You or by third parties. Furthermore, by installing and continuing to use the Qumana Software You agree to be bound by the terms of this Agreement and any new versions hereof.
Electronic Signatures and Agreement(s): You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by Qumana to show Your approval of any foregoing texts and/or to download and install the Qumana Software, You are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Qumana Software. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
JurisdictionÆs Restrictions: if You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and download, install or use the Qumana Software. Furthermore, if You are residing in a jurisdiction where it is forbidden by law to offer or use software for internet telephony, You may not enter into this Agreement and You may not download, install or use the Qumana Software. By entering into this Agreement You explicitly state that You have verified in Your own jurisdiction if Your use of the Qumana Software is allowed.
1 DEFINITIONS
In this Agreement the following words have the meanings shown:
1.1 Affiliate: any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, Qumana. For the purpose of this definition, the word "control" means the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.
1.2 Agreement: this End User License Agreement, as may be renewed, modified and/or amended from time to time.
1.3 Blog: a Weblog or weblogs of any type created by you or to which you have contribution rights, including Collaborative Blogs for which you are an author.
1.4 Documentation: any online or otherwise enclosed documentation provided by Qumana.
1.5 Effective Date: the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above.
1.6 IP Rights: any and all intellectual property rights, including but not limited to copyrights, trademarks and patents, as well as know how and trade secrets contained in or relating to the Qumana Software, the Documentation, the Qumana Website or the Qumana Intellectual Property.
1.7 Link: any Link which You post or allow to be posted in your Blog, which will take a user or reader of your Blog to a new web site not controlled by You or by Qumana.
1.8 Password: refers to a code You select, which, in combination with the User ID, gives You access to Your User Account;
1.9 Qumana: refers to the company established under the laws of the province of British Columbia, Canada, with offices at 330 û 1639 West 2nd Avenue, Vancouver, B.C. V6J 1H3
1.10 Qumana Intellectual Property: any and all trademarks, names, signs, logos, banners, Qumana Online Material and any other materials, in whatever form, owned and/or used by Qumana for the promotion of its company, its products and activities.
1.11 Qumana Software: the desktop blogging editor software distributed by Qumana including the Qumana Ads software.
1.12 Qumana Staff: the officers, directors, employees and agents of Qumana or its Affiliates, or any other persons hired by Qumana or its Affiliates.
1.13 Qumana Website: any and all elements, contents and the ælook and feelÆ of the website available û among other URLÆs - under the URL www.Qumana.com, from which website the Qumana Software can be downloaded.
1.14 Terms of Service: means the agreement between Qumana Software Inc. and You for the use of the Qumana Software;
1.15 UI: the user interface of the Qumana Software.
1.16 User Account: refers to the account with User ID and Password that You create for Your use of the Qumana Software;
1.17 User ID: refers to an identification code You selected, which in combination with the Password, gives access to Your User Account;
1.18 You: you, the end user of the Qumana Software, also used in the form ôYourö where applicable.
2 LICENSE AND RESTRICTIONS
2.1 License. Subject to the terms of this Agreement, Qumana hereby grants You a limited, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable, free of charge license to download, install and use the Qumana Software on Your computer, phone or PDA for the sole purpose of personally using the service applications provided by Qumana and any other applications that may be explicitly provided by Qumana. For the avoidance of doubt, You may use the Qumana Software for business and for all types of Blogs, including but not limited to personal, business, scientific, political or photo Blogs, in accordance with the terms of this Agreement.
2.2 No Granting of Rights to Third Parties. You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Qumana Software or any part thereof.
2.3 No Modifications. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Qumana Software or any part thereof.
2.4 Third Parties. You acknowledge and agree that the Qumana Software may be incorporated into, and may incorporate itself into, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Qumana Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the Qumana Software will be subject to you explicitly accepting a license agreement with that third party. You acknowledge and agree that you are not entering into a contractual relationship with Qumana or its Affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to Qumana or its Affiliates to enforce any of your rights.
2.5 New Versions of the Qumana Software. Qumana, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Qumana Software. You acknowledge and agree that Qumana has no obligation to make available to You any subsequent versions of the Qumana Software. You also agree that you may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the Qumana Software. Furthermore, You acknowledge and agree that Qumana, in its sole discretion, may modify or discontinue or suspend Your ability to use any version of the Qumana Software, and/or disable any Qumana Software Qumana will not accept any liability in relation to the direct or indirect damages caused by (1) the release and/or the absence of release of new versions of the Qumana Software and (2) by the suspension or termination of the license or this Agreement by Qumana and/or by You.
2.6 Paid Services. This Agreement applies to downloading, installing and using the Qumana Software, free of charge. The use of any paid services which may be offered by Qumana or its Affiliates, will be subject to the additional Terms of Service that may be published on the Qumana Website from time to time.
2.7 Qumana Ads. If you sign up for the Qumana Ads services, such services will be governed by End User License which you will find at http://qads.qumana.com/advertising/terms/default.shtml.
3 LIMITATIONS ON LICENSE
3.1 Distribution of Qumana Software. You are not allowed to re-sell or distribute the Qumana Software under this Agreement.
3.2 Qumana Intellectual Property. Nothing in this Agreement will give You any right to use the Qumana Intellectual Property.
4 USER ID, PASSWORD AND ACCOUNT.
4.1 You will be asked to provide a User ID and Password for your User Account. You are solely responsible for maintaining the confidentiality of Your User ID and Password. You are responsible and liable for all activities conducted through Your User ID, Password and Your User Account, even if this occurs without Your permission.
4.2 Notification and Indemnification. You agree to immediately notify Qumana in writing of any unauthorised and/or fraudulent use of Your User ID, Password, or User Account. You agree to indemnify Qumana against any and all third party claims and all related liabilities arising out of, or relating to, the use of Your User ID, Password or User Account. Qumana will not be liable for any damages resulting from the unauthorised and/or fraudulent use of Your User ID, Password or User Account.
5 CONFIDENTIALITY AND PRIVACY
5.1 QumanaÆs Confidential Information. You agree to take all reasonable steps at all times to protect and maintain any confidential information regarding Qumana, its Affiliates, the Qumana Staff, the Qumana Software and the IP Rights, strictly confidential.
5.2 Your Confidential Information and Your Privacy. Qumana is committed to respecting Your privacy and the confidentiality of Your personal data. The ôPrivacy Policyö that is published on the Qumana Website at www.Qumana.com applies to the use of Your personal data, the traffic data as well as the content contained in Your communication(s). We do not sell or rent Your personal information to third parties for their marketing purposes without Your explicit consent and we use Your information only as described in the Privacy Policy. We store and process Your information on computers that may be located outside Your country that are protected by physical as well as technological security devices. You can access and modify the information You provide in accordance with the Privacy Policy. If You object to Your information being transferred or used in this way please do not use our services.
6 IP RIGHTS AND TRANSLATIONS
6.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights to or arising from the Qumana Software are and shall remain the exclusive property of Qumana and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws. You acknowledge and understand that all title and IP Rights in and to any third party content that is not contained in the Qumana Software, but may be accessed through use of the Qumana Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
6.2 With the exception of IP Rights of Qumana and/or its licensors in Qumana Software, You retain the intellectual property rights You may have in the applications, materials, products or processes You create which are based on or utilize the Qumana Software, including the contents of Your Blog and all Posts to Your Blog. You hereby release and covenant not to hold liable Qumana or its Affiliates, or any of their licensees, assigns or successors, for any and all damages, liabilities, causes of action, judgments or claims (a) pertaining to any intellectual property You develop that is based on, uses, or relates to the Qumana Software; and (b) which otherwise may arise in connection with Your use of, reliance on, or reference to the Qumana Software. As between You and Qumana, Qumana and its licensors retain the IP Rights in and to the Qumana Software and any derivative works thereto created by or for Qumana or its licensors.
6.3 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or QumanaÆs rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to such materials.
7 YOUR USE OF THE QUMANA SOFTWARE
7.1 No Warranties. Qumana cannot guarantee that Your Blog will always be available to You or others without disruptions, delays or communication-related flaws. Qumana will not be liable for any such disruptions, delays or other omissions in any communication experienced when using Qumana Software.
7.2 No Responsibility for Content. You acknowledge and understand that the content of Your Blog is entirely the responsibility of You and/or the person from whom such content originated. You, therefore, may be exposed to content that is offensive, harmful to minors, indecent or otherwise objectionable. Qumana will not be liable for any type of communication spread by means of or involving the use of the Qumana Software.
7.3 Links. You acknowledge and agree that Qumana does not control, and cannot be responsible for the content of any web site which you Link from Your Blog.
7.4 Lawful purposes. You acknowledge and agree to use the Qumana Software solely for lawful purposes. In this respect You may not, without limitation (a) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Qumana Software, (b) send any unsolicited commercial communication not permitted by applicable law, or (c) expose any other user to material which is offensive, harmful to minors, indecent or otherwise objectionable.
8 TERM AND TERMINATION
8.1 Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either Qumana or You as set forth below.
8.2 Termination by Qumana. Without limiting other remedies, Qumana may limit, suspend, or terminate this license and Your use of Qumana Software, prohibit access to Qumana Website and delete Your User Account and/or User ID, with immediate effect, if we think that You are in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, which can be found at www.Qumana.com, infringing someone elseÆs intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. Qumana shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to the respective User Account. We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.
8.3 Termination by You. You may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to the courts, provided that You will meet with the conditions as set forth in Article 7.4 below.
8.4 Consequences of Termination. Upon termination of this Agreement, You (a) acknowledge and agree that all licenses and rights to use the Qumana Software shall terminate, and (b) will cease any and all use of the Qumana Software, and (c) will remove the Qumana Software from all hard drives, networks and other storage media and destroy all copies of the Qumana Software in Your possession or under Your control.
8.5 No liability. Qumana will not be liable in relation to any damage caused by the termination of this Agreement.
9 YOUR REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION OF QUMANA
9.1 Representations. You represent and warrant that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times meet with Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Qumana Software.
9.2 Indemnification. You agree to indemnify, defend and hold Qumana, Affiliates and the Qumana Staff harmless from and against any and all liability and costs, including reasonable attorneysÆ fees incurred by said parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of the Qumana Software, or (d) use and/or modification of the Qumana Software or (e) communication spread by means of the Qumana Software.
9.3 Export Restrictions.á You acknowledge that the Qumana Software may be subject to international rules that govern the export of software.áYou agree to comply with all applicable international and national laws that apply to the Qumana Software as well as end-user, end-use and destination restrictions issued by national governments.á
10 DISCLAIMER OF WARRANTIES
10.1 NO WARRANTIES. THE QUMANA SOFTWARE IS PROVIDED ôAS ISö, WITH NO WARRANTIES WHATSOEVER; QUMANA DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE QUMANA SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. QUMANA FURTHER DOES NOT REPRESENT OR WARRANT THAT THE QUMANA SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES QUMANA WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE QUMANA SOFTWARE.
10.2 Your own Risk. You acknowledge and agree that the entire risk arising out of the use or performance of the Qumana Software remains with You, to the maximum extent permitted by law.
10.3 JurisdictionÆs Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited as far as legally possible under the applicable legislation.
11 LIMITATION OF LIABILITY
11.1 No Liability. The Qumana Software is being provided to You free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT QUMANA, ITS AFFILIATES AND THE QUMANA STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE QUMANA SOFTWARE, AS SET FORTH BELOW.
11.2 Limitation of Liability. IN NO EVENT SHALL QUMANA, ITS AFFILIATES OR THE QUMANA STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE QUMANA SOFTWARE, EVEN IF QUMANA, ITS AFFILIATES OR THE QUMANA STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
11.3 Remedy. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE QUMANA SOFTWARE IS TO DEINSTALL AND CEASE USE OF SUCH QUMANA SOFTWARE.
11.4 JurisdictionÆs Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited as far as legally possible under the applicable legislation.
12 GENERAL PROVISIONS
12.1 New versions of the Agreement. Qumana reserves the right to modify this Agreement at any time by providing such revised Agreement to You or by publishing the revised Agreement on the Qumana Website. The revised Agreement shall become effective within thirty (30) days of such publishing or provision to You, unless You expressly accept the revised Agreement earlier by clicking on the accept button. The express acceptance by You, or Your continued use of the Qumana Software after expiry of the notice period of thirty (30) days, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at www.Qumana.com. Qumana reserves the right to make changes to this Agreement from time to time.
12.2 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and Qumana with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
12.3 Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
12.4 No waiver. The failure of Qumana at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by Qumana.
12.5 No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder.
12.6 Assignment by Qumana. Qumana is allowed to at its sole discretion assign this Agreement or any rights hereunder to any Affiliate, without giving prior notice.
12.7 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Proviince of British Columbia and of Canada without giving effect to any conflict of laws provisions.
12.8 Competent Court. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the Province of British Columbia in Vancouver, British Columbia.
12.9 Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.
12.10 YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE QUMANA SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO QUMANA THE RIGHTS SET FORTH HEREIN.
