This is a binding legal agreement between the natural person or legal person (“Customer” or “you”) agreeing to these Terms of QANDR Services (“Terms”) and Noterik BV (“Noterik,” “us,” or “we”). By accepting these Terms, signing an Order, or using the QANDR services subject to these Terms of QANDR Services (collectively the “QANDR Services(s)” or “Noterik QANDR Services(s)”), you represent that you have civil and legal capacity, that you are of legal age and have the authority to bind the Customer to the Order, these Terms and the following additional terms and conditions and policies, which are hereby incorporated by reference (collectively, the “Agreement”):
Your use of and access to the Noterik QANDR Services, and the licenses granted herein are expressly conditioned upon your compliance with and acceptance of this Agreement.
If you register on behalf of a legal person, you represent to Noterik that you have the authority to bind that legal person and that your acceptance of this Agreement will be treated as acceptance by that legal person. The Noterik QANDR services are not available to persons who are not legally eligible to be bound by this Agreement.
Changes and Modifications. Noterik may change or amend these Terms. If we make material changes, we will notify you, either through the user interface, in an email notification, or through other reasonable means. Your use of the QANDR Services after the date such change(s) become effective will constitute consent to the changed terms. If you do not agree to the changes, you must immediately stop using the QANDR Services. Otherwise, the new terms will apply to you.
As long as you comply with this Agreement, Noterik grants you a limited, revocable, non-exclusive, non-assignable, non-sublicensable right to access and use the QANDR Services as it is intended to be used and in accordance with this Agreement and applicable law. We grant you no other rights, implied or otherwise.
2. Description of QANDR Services
The QANDR Services is an interactive visualization tool for group discussions. The QANDR Services combines creative thinking and technological expertise to allow you to seamlessly create your own high-quality discussions and post and stream them to the internet, and share them with friends or colleagues.
3. Conditions and Restrictions of Use, User Conduct
As a condition of use, and the licenses granted to you herein, you agree that you will not (and will not attempt to):
System requirements. Use of the Noterik QANDR services may require one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the QANDR services involves hardware, software, and Internet access, your ability to access and use the QANDR services may be affected by the performance of these factors. High-speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility.
4. Age Restrictions on Use of the QANDR Services
You may not use the QANDR Services if you are under 13 years of age and don't have parental permission for this. You represent that you are 13 or older, and that you will not permit a minor under the age of 13 to use the QANDR Services, your QANDR account, or otherwise interact with the QANDR Services. Noterik will never knowingly solicit or accept personally identifiable information or other content from a user or visitor who Noterik knows is under 18 years of age. If Noterik discovers that a user under 13 years of age has created an account, or that a user or visitor under 13 years of age has posted personally identifiable information or other content to the QANDR Services, Noterik will terminate the account and remove the information or other content.
Users between 13 and 18 (each a “Teen”) may not access or use the QANDR Services unless (i) both the Teen and their parent or legal guardian have first agreed to these Terms of QANDR Services; and (ii) the Teen uses an account established by their parent or legal guardian, under such parent or guardian’s supervision, and with such parent or guardian’s permission. If you permit a Teen to use the QANDR Services, you hereby agree to these Terms of QANDR Services on behalf of both yourself and the Teen. You further agree that you are solely responsible for any and all use of the QANDR Services by your Teen regardless of whether such use was authorized by you.
5. Account Types
Noterik offers a variety of user accounts. You can find out about all the types of accounts, as well as their features and pricing, here. QANDR services, features, account types and pricing are subject to change.
6. Beta QANDR services
Noterik may, from time to time, offer access to QANDR services that are classified as 'Beta version'. Access to and use of Beta versions may be subject to additional terms of QANDR Services, policies and other agreements. Noterik makes no warranties and rediscussion templates that a Beta version will ever be made generally available and reserves the right to discontinue or modify a Beta version at any time without notice. Beta versions are provided AS-IS, may contain bugs, errors or other defects, and your use of a Beta version is at your sole risk.
7. User Content & Options
Noterik offers a number of ways to share, or not share, your User Content, including discussion templates, videos, with others.
We will not view, access or process any of your Private User Content, except:
Paid QANDR accounts. If you are making use of the QANDR Services to display or edit User Content (including discussion templates, videos, and other content) that you do not wish to be accessible or viewable by other Noterik users or the public (“Private User Content”) – or if you wish to display or edit your User Content – you are required to have a paid QANDR account. If you have an educational or paid QANDR account, your user name may be shared by Noterik with others who we think might be interested in you, but you can choose to designate your content Public User Content or Private User Content. discussion templates designated as Private User Content will not be available to the public. Rather, they will be available to you, and to those Noterik users with whom you have chosen to share the User Content. You may invite one or more people (a “Viewer”) to view your presentation or video by sending them a “share” or “invite” link. You can learn more about sharing here. You hereby do and shall grant to each Invited Viewer a worldwide, non-exclusive license to access, view, publicly perform, publicly display and communicate to the public your Private User Content. This license ends one year after you delete the Private User Content, including the presentation or video, or your account is closed (either by you or by us), except to the extent that the Private User Content has been shared with others and they have not deleted it.
Sharing with edit rights. Regardless of whether your User Content has been designated as Public User Content or Private User Content, you may choose to share a presentation, video or other User Content in a manner that allows the person you’ve shared such User Content with (a “Co-editor”) to reuse or edit that User Content, or portions thereof as permitted by the Noterik QANDR services. You can learn more about sharing with edit rights here. You hereby do and shall grant to each Co-editor a worldwide, non-exclusive license to use, store, reproduce, modify, create derivative works, communicate to the public, publish, publicly perform, publicly display, distribute and transmit the content of which they are Co-editors. This license ends one year after you delete the content or your account is closed (either by you or by us), except to the extent that the User Content has been shared with the Co-editors and they have not deleted it.
Allowing Re-use. If your content is designated as Public User Content, you may choose to “allow re-use” of that content (in the case of videos that are designated Public User Content, you are required to allow re-use). When you allow re-use of your Public User Content, you hereby do and shall grant to each user of the QANDR Services a worldwide, non-exclusive license to use, store, reproduce, modify, create derivative works, communicate to the public, publish, publicly perform, publicly display, distribute and transmit your User Content, and portions thereof as permitted by the Noterik QANDR services. This license ends when you delete the Public User Content, including presentation or video, or your account is closed (either by you or by us), except to the extent that the Public User Content has been shared with others and they have not deleted it. The “allow reuse” option is enabled by default for Noterik Public accounts when creating new discussion templates and videos; the option can be disabled for discussion templates, but not for videos.
Noterik Videos. You may create, stream, record and share videos using the Noterik QANDR services. These videos may feature, among other things, the image of you, Noterik discussion templates, and other User Content. Live video feeds (including via Facebook Live and Zoom) are supported as well. As with all online activities, please exercise discretion in deciding what to post.
Integration with Other QANDR services. Noterik supports sharing with other Third-party QANDR services. You hereby grant to Noterik all rights necessary to connect your social media and other third-party accounts, and to effectuate your User Content sharing (including without limitation video streaming) with these platforms. Please be aware that third-party QANDR services are governed by their own terms and policies; it is your responsibility to familiarize yourself with them before posting.
Noterik for Teams Accounts. If your account is part of a Noterik for Teams account, your account is subject to the terms and conditions of the agreement between Noterik and the owner of the Noterik for Teams account, i.e. the entity (the “Team Administrator”) that is financially responsible for any fees associated with the Noterik for Teams accounts belonging to that entity and which assigned your Noterik for Teams account to you. Those terms may be in addition to or different from the terms and conditions in this Agreement. Please note that the Team Administrator controls your Noterik for Teams account and may, among other things:
Business Accounts. If you sign up for a Noterik Public Account or a Paid QANDR account with an e-mail address using a domain owned by an organization (“Organization”) then, depending on your country of habitual residence and the agreement entered into between us and the Organization, your account (a “Business Account”) is subject to the terms and conditions of the agreement between Noterik and the Organization. Those terms may be in addition to or different from the terms and conditions in this Agreement. Please note that the Organization controls your Business Account and may have the same rights with regard to your Business Account that a Team Administrator has with regard to a Noterik for Teams account.
If you convert your account to a Business Account, the Organization may prevent you from subsequently converting your account to another account type. Please ask your Organization about the specific conditions applicable to your Business Account. You hereby do and shall grant to the Organization a worldwide, non-exclusive license to use, store, reproduce, modify, create derivative works, communicate to the public, publish, publicly perform, publicly display, distribute and transmit the Public User Content or Private User Content of your account. This license ends one year after you delete the presentation or your account is closed (either by you or by us), except to the extent that the content has been shared with others and they have not deleted it.
The Organization may request Noterik to block your account until you either convert your account to a Business Account or you associate a personal e-mail address with your account.
Your Accounts. You are solely responsible for (i) all use of the QANDR services by you and your users, (ii) obtaining consent from your users to the collection, use, processing and transfer of User Content, and (iii) providing notices or obtaining consent as legally required in connection with the Noterik QANDR services. We do not send emails asking for your usernames or passwords, and to keep your accounts secure, you should keep all usernames and passwords confidential. We may suspend the Noterik QANDR services or terminate the Agreement if you, your users, or attendees are using the QANDR services in a manner that is likely to cause harm to us or to third parties. You agree to notify us immediately in the event you become aware of a security breach.
Trials and Free QANDR services. Your right to access and use the Noterik QANDR services is not guaranteed for any period of time and we reserve the right, in our sole discretion, to limit or terminate the use of any Noterik QANDR Services at any time. If you are using the QANDR services on a trial or promotional basis (“Trial Period”), your Trial Period and access to the QANDR services will terminate (i) at the end of the Trial Period stated in your Order, or (ii) if no date is specified, 14 days after your initial access to the Noterik QANDR services, or (iii) upon your conversion to a subscription. We may modify or discontinue any trials or promotions at any time without notice.
7.2 LICENSES YOU GRANT TO Noterik FOR USE OF PUBLIC USER CONTENT AND PRIVATE USER CONTENT
In order to provide the QANDR Services to you in accordance with the Agreement, we need certain licenses from you in order for us to, e.g., host, store and display the User Content. For example, we need the right to (i) publicly display/perform the User Content to allow us to display it on the computer monitor of any party who is not the copyright holder, or (ii) reproduce the User Content so that it can be saved to our servers, or (iii) prepare derivative works based upon the User Content and modify the User Content, for instance, when transcoding an uploaded image into a format that will work most efficiently with the QANDR Services.
With respect to Private User Content, you hereby do and shall grant to Noterik (and its successors, assignees, and third-party QANDR Services providers) a worldwide, non-exclusive, royalty-free, fully paid, sublicensable, and transferable license to use, host, store, reproduce, modify, create derivative works, communicate to the public, publish, publicly perform, publicly display, distribute and transmit the content for the purpose of providing you, and those with whom you have shared your Private User Content, including but not limited to discussion templates, videos, with the QANDR Services. This license ends one year after you delete your Private User Content or your account is closed (either by you or by us), except (i) to the extent that your Private User Content has been shared with others and they have not deleted it, (ii) that if you are a habitual resident of a Member State of the European Economic Area, we retain a license to maintain a back-up copy of your Private User Content for three years and (iii) that if you are not a habitual resident of a Member State of the European Economic Area, we retain a license to maintain a back-up copy of your Private User Content indefinitely.
With respect to Public User Content, you hereby do and shall grant to Noterik (and its successors, assignees, and third-party QANDR Services providers) a worldwide, non-exclusive, royalty-free, fully paid, sublicensable, and transferable license to use, host, store, reproduce, modify, create derivative works, communicate to the public, publish, publicly perform, publicly display, distribute and transmit the Public User Content (1) for the purpose of providing you, and those with whom you have shared Public User Content, including but not limited to your discussion templates, videos (including the public), with the QANDR Services; and (2) in connection with promotion and marketing of Noterik products and QANDR services, including without limitation allowing third parties to search or index the content, in connection with email promotions, product demonstrations, and the like. This license ends one year after you delete your Public User Content or your account is closed (either by you or by us), except (i) to the extent that your Public User Content has been shared with others and they have not deleted it and (ii) that we retain a license to maintain a back-up copy of your Public User Content indefinitely.
Regardless of whether you designate content public or private, Noterik makes no claim of ownership to your User Content and obtains no rights to your content other than as provided for herein.
7.3 EXPIRATION AND REVOCABILITY OF LICENSES
Noterik makes it easy for users with qualified accounts to change a presentation’s public/private, and “allow reuse” status at any time.
However, uses made of your presentation, video or other User Content, whether by Noterik or its users, are subject to the licenses that were in place at the time such use was originally made by the person or entity who originally made the use. For example, licensed uses of Public User Content, or content that allows reuse, may continue to be made after such content is designated Private User Content, by those users who previously used the content under the prior license.
7.4 THIRD-PARTY AND LINKED/EMBEDDED CONTENT
7.5 PROFESSIONAL QANDR services
If your QANDR account includes design QANDR services, training QANDR services or other professional QANDR services, (collectively, “Professional QANDR services”), this section applies to your account.
Noterik will perform the Professional QANDR services in a competent and professional manner.
You will provide all assistance and cooperation to Noterik reasonably necessary to permit Noterik to perform the Professional QANDR services. You acknowledge that failure to provide such assistance and cooperation may impair Noterik’s ability to provide the Professional QANDR services and may result in additional charges being invoiced to you as a result of additional time or expenses incurred by Noterik as a result. You will be responsible for making, at your sole expense, any changes or additions to your hardware and software systems that may be required to support Noterik’s performance of the Professional QANDR services or the installation, implementation and/or use of any deliverables specified (each, a “Deliverable” and, collectively, the “Deliverables”). You will assign a project manager to (i) assist and coordinate with Noterik in connection with its performance of the Professional QANDR services, (ii) serve as a principal point of contact with Noterik and (iii) perform the review, analysis, and acceptance of the Deliverables.
Upon payment in full of the fees for your QANDR account which includes Professional QANDR services, or upon payment in full of Noterik’s fees for the Professional QANDR services if such fees are separate from the charges for your QANDR account, you will have a worldwide, royalty-free, non-exclusive right and license to use the resulting Deliverables solely in connection with your QANDR account on a trial basis for sixty (60) days from the date your QANDR account is activated (the “Trial Period”). You may terminate the Trial Period prior to its scheduled end by issuing a written termination notice to Noterik. Upon Noterik’s receipt of the termination notice, the Trial Period will terminate, your license to use the Deliverables will terminate, you may not make any further use of the Deliverables and you will be entitled to a credit for the portion of the fees which you paid which are applicable to the Professional QANDR services which directly relate to the applicable Deliverables. If you do not issue Noterik a written termination notice before the scheduled end of the Trial Period, you will have a worldwide, royalty-free, non-exclusive right and license to use the resulting Deliverables solely in connection with your QANDR account until your QANDR account expires or is terminated.
Noterik reserves all rights to the Deliverables that are not expressly granted in these Terms of QANDR Services. Nothing in these Terms of QANDR Services will be construed as granting you any property rights in or to the Deliverables or in or to any invention or any patent, copyright, trademark or other intellectual property rights that have been issued, or that may issue, based on the Deliverables. The Deliverables are licensed hereby, not sold.
8. Payment Terms
8.1 PAYMENT FOR SUBSCRIPTION
You agree to pay the then-current fee for your account type. Some QANDR accounts are offered with a free trial period. Such free trials are limited to one-per-user. Users must not fraudulently obtain (or attempt to obtain) additional trial periods beyond the single free trial term.
If your account began with a free trial, the current fee for the account type you have selected will automatically and immediately be charged to your payment instrument or account on the date your free trial expires. If your account did not begin with a free trial, the current fee for the account type you have selected will automatically and immediately be charged to your payment instrument or account on the date you signed up and then every 30 or 365 days after (depending on the billing cycle which applies to your account). Fees charged for one account type may not be credited towards other account types. All currency references are in U.S. dollars.
8.2 FRAUD PROTECTIONS
To protect against potential fraud, Noterik may take steps to verify the validity of the credit card information you provide to us. The verification process may include debiting an amount between $0.01 and $0.99 from your credit card account and then immediately crediting the same amount back to your credit card, as well as asking you to verify the amount debited in order to confirm that you are in possession of your credit card. Noterik will only use this process to screen for fraud and will not otherwise debit your credit card account except as part of a transaction conducted through your account for the QANDR Services. By providing Noterik with your credit card information, you authorize Noterik to debit and credit your credit card account for an amount less than one dollar for such verification purposes. Noterik may also engage third parties to provide fraud detection QANDR services.
8.3 CANCELLATION OF SUBSCRIPTION
Payment for subscriptions is non-refundable. If you cancel your recurring payment option, your account will remain active until its next renewal date. If you delete your account before the end of the term for which you paid, your cancellation will take effect immediately. In either case (cancellation or deletion), you will not be given any refund.
If your payment method is invalid or rejected for any reason and a free Noterik Public version of your paid QANDR account type is available, your paid QANDR account will revert to the free Noterik Public account version and will be subject to the limitations of a free Noterik Public account, provided, however, that Noterik reserves the right to cancel your account entirely in such case. You will have the option of deleting any User Content from your account prior to its reversion to a Noterik Public account. In the event your paid QANDR account reverts to a free Noterik Public account, any content you previously created with a paid QANDR account and designated as Private User Content will remain Private User Content, but you will not be able to edit such content. New content you create with such an account will become Public User Content, which means any new content you create from that point forward is going to be public.
If your paid QANDR account began with a free trial and you do not purchase a subscription to the same or an upgraded version of those QANDR services before the end of the trial period, your paid QANDR account will automatically terminate at the end of the trial period. If your paid QANDR account is terminated for any reason or expires, any content you entered into the QANDR Services, and any customizations made to the QANDR Services by or for you, which are associated with your paid QANDR account will become unavailable.
Noterik further reserves the right to cancel, or revert to Noterik Public account status, the account of any user who attempts to fraudulently obtain Noterik educational pricing.
9. Abuses, Warranties
When you upload User Content on or through the QANDR Services, you represent and warrant that, with respect to all User Content that you use, upload, transmit, publish and disseminate through the QANDR Services, (a) you have all the rights, consents, releases, permissions and licenses necessary to use, upload, transmit, disseminate, reproduce, publish, communicate to the public, publicly display, perform publicly, distribute, or otherwise exploit such User Content in connection with the QANDR Services (and to grant to Noterik and/or others the licenses set forth in this Agreement); (b) the User Content will not infringe or otherwise violate any rights, including but not limited to privacy, image, name, honor, dignity, copyright, trademark, and/or legal interests of any third party.
10. Noterik’s Intellectual Property
All intellectual property, e.g. text, fonts, graphics, pictures, icons, user interfaces, visual interfaces, photographs, trademarks, logos, design marks, sounds, music and its accompanying words, artwork, content, computer code, programs, software (collectively, “Noterik Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement of such Noterik Content, contained on the QANDR Services is owned, disposed, controlled, or licensed by or to Noterik, and is protected by trade dress, industrial design, copyright, patent, and trademark laws, and various other intellectual property rights.
Except as expressly provided in this Agreement, including our Trademark and Brand Usage Policy, or otherwise permitted by law, no Noterik Content may be used, copied, reproduced, communicated to the public, modified, republished, uploaded, posted, publicly displayed, publicly performed, publicly performed by means of a digital audio transmission, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for publication or distribution or for any purpose, without Noterik’s express prior written consent.
If you embed a presentation authored by Noterik within a third-party website or QANDR Services – including but not limited to embedding a Noterik-authored presentation at your own website – you agree to attribute that presentation to Noterik as follows:
© Noterik 2020
learn more at www.noterik.nl
11. Termination; Breach of this Agreement
You agree that Noterik may, at its sole discretion and without prior notice, terminate your account, your access to the QANDR Services, and/or block your future access to the QANDR Services. By way of example, but not by way of limitation, we may terminate your account if we determine that you have violated this Agreement or other agreements or guidelines that may be associated with your use of the QANDR Services. Please note that it is Noterik’s policy to terminate the accounts of users who repeatedly violate the intellectual property rights of third parties.
If Noterik takes any legal action against you as a result of your breach of this Agreement, Noterik will be entitled to recover from you, and you agree to pay, all reasonable attorney’s fees and costs of such action, in addition to any other relief granted to Noterik.
12. Disclaimer of Warranties
While Noterik attempts to make User Content available through the QANDR Services, Noterik does not guarantee access to, or hosting of, your User Content. For example, if User Content violates these Terms of QANDR Services, access to it may be disabled. Also, if a particular piece of content creates too large a demand on the QANDR Services, it may result in access to the content being temporarily or permanently disabled. You agree that Noterik will not be liable to you or to any third party for termination of your access to the QANDR Services for any reason.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE QANDR Services IS AT YOUR SOLE RISK. THE QANDR SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NOTERIK AND ITS SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AND LICENSORS (THE “NOTERIK AFFILIATES”) EXPRESSLY DISCLAIM ALL WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTERIK AND THE NOTERIK AFFILIATES MAKE NO WARRANTY THAT (a) THE QANDR SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE QANDR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (c) USER CONTENT WILL BE HOSTED AND/OR TRANSMITTED WITHOUT INTERRUPTION OR CESSATION; (d) ANY PRODUCTS, SITES, INFORMATION, OR OTHER MATERIAL, WHETHER IN TANGIBLE OR INTANGIBLE FORM, PURCHASED OR OBTAINED BY YOU THROUGH THE QANDR SERVICES WILL MEET YOUR EXPECTATIONS OR ANY STANDARD OF QUALITY; AND (e) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE QANDR SERVICES OR RELATED SOFTWARE WILL BE CORRECTED.
ANY MATERIAL, INFORMATION, OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE QANDR Services IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM AND/OR LOSS OF DATA THAT RESULT FROM THE DOWNLOAD OF SUCH MATERIAL. NO ADVICE, REPRESENTATION OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NOTERIK, THE NOTERIK AFFILIATES, OR THROUGH THE QANDR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
18. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NOTERIK AND THE NOTERIK AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER, CAUSED. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY LOSS OF PROFITS, GOODWILL, OR BUSINESS REPUTATION; ANY LOSS OF DATA; ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR QANDR SERVICES; OR ANY OTHER INTANGIBLE LOSSES. THIS ALSO INCLUDES, WITHOUT LIMITATION, ANY LOSS OR DAMAGES THAT MAY BE INCURRED BY YOU AS A RESULT OF (a) ANY CHANGES THAT NOTERIK MAY MAKE TO THE QANDR SERVICES; (b) ANY PERMANENT OR TEMPORARY CESSATION OF THE QANDR SERVICES; (c) THE DELETION OR CORRUPTION OF OR FAILURE TO STORE ANY CONTENT OR OTHER PROPERTY MAINTAINED THROUGH THE QANDR SERVICES; OR (d) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY ABOVE SHALL APPLY IRRESPECTIVE OF THE THEORY OF LIABILITY, INCLUDING CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR OTHER THEORY, EVEN IF WE (OR OUR AFFILIATES) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF NOTERIK, AND ITS SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIM UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE QANDR SERVICES OVER THE PRIOR SIX-MONTH PERIOD.
YOU SPECIFICALLY ACKNOWLEDGE THAT NOTERIK, AND THE NOTERIK, AFFILIATES SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
14. Exclusions and Limitations
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, NOTERIK, AND/OR THE NOTERIK, AFFILIATES’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. Please Review User Content for Appropriateness Before Use
Noterik has not reviewed the User Content featured on the QANDR Services to determine whether they are suitable or appropriate for your intended audience. Before using any of the User Content (including discussion templates and videos) featured on the QANDR Services, please PREVIEW THEM CAREFULLY to ensure that the materials are appropriate for your audience, and for any other uses you intend to make. Noterik is not responsible for any User Content on the QANDR Services. If you find any content on the QANDR Services that you believe is objectionable, or that violates these Terms of QANDR Services or Noterik’s conduct guidelines, please report us an abuse by filling up the form or feel free to notify us at firstname.lastname@example.org.
You agree to indemnify and hold Noterik and/or the Noterik Affiliates harmless from and against any and all liabilities and costs (including reasonable attorney’s fees) incurred by Noterik and/or the Noterik Affiliates in connection with any claim arising out of your breach of the Agreement. Noterik reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
17. Dispute Resolution by Binding Arbitration
Claims that are currently the subject of purported class action litigation in which you aren't a member of a certified class; and
Claims that may arise after the termination of this Agreement.
References to "Noterik", "you", "we", and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of QANDR services under this or prior agreements between us.
Notwithstanding the foregoing, either party may bring an individual action in small claims court if its claims are within that court’s jurisdiction and are pending only in that court. You agree that, by entering into this Agreement, you and Noterik are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of these Terms of QANDR Services.
(2) A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Noterik should be addressed to: Noterik B.V. Prins Hendrikkade 193-C, 1011 TD, Amsterdam in The Netherlands. ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Noterik and you don't reach an agreement to resolve the claim within 30 days after the Notice is received, you or Noterik may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Noterik or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Noterik is entitled.
(4) Notwithstanding any provision in this Agreement to the contrary, we agree that if Noterik makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of these Terms of QANDR Services, you may reject any such change by sending us written notice within 30 days of change to the Notice Address provided above. By rejecting any future change, you're agreeing that you'll arbitrate any dispute between us in accordance with this provision.
(5) HOW TO OPT OUT OF ARBITRATION: You may opt-out of this arbitration provision by sending a letter to the Notice Address referenced above, and providing each of the following pieces of information: (a) your full name; (b) your address; (c) your phone number; (d) the URL where you found this agreement; and (e) a clear statement that you wish to opt-out of this arbitration provision. This opt-out notice must be emailed no later than 30 days after the date you first accept these Terms of QANDR Services.
(6) If for any reason a claim proceeds in court rather than in arbitration, you agree to the personal jurisdiction by and venue in the state and federal courts in Amsterdam, The Netherlands, and waive any objection to such jurisdiction or venue.
18. General Terms
Entire Agreement. This Agreement is the whole legal agreement between you and Noterik. It governs your use of the QANDR Services and completely replaces any prior agreements between you and Noterik with respect to the QANDR Services. You may also be subject to additional terms and conditions that may apply when you use or purchase other products or QANDR services from Noterik.
Governing Law. The laws of the The Netherlands will apply to any disputes arising out of or relating to these terms or the Noterik QANDR services.
Severability of Terms; Non-waiver of Terms. If any portion of the Agreement is held to be invalid or unenforceable, such provision shall be stricken and the remainder of the Agreement enforced as written. If Noterik does not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver of our rights.
Miscellaneous. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third party beneficiary. Our authorized distributors do not have the right to modify these Terms of QANDR Services or to make commitments binding on us.
19. Additional Terms
High-Risk Use. Except as otherwise set forth in a Noterik QANDR Services Description, you understand that the Noterik QANDR services are not designed or intended for use during high-risk activities.
Recording. Certain QANDR services may provide functionality that allows you to stream and record audio and data shared during discussion templates, webinars or sessions. You are solely responsible for complying with all applicable laws in the relevant jurisdictions while using any recording functionality.
Assignment. You may not assign your rights or delegate your duties under these Terms of QANDR Services either in whole or in part without Noterik’s prior written consent. Any attempted assignment by you without Noterik’s consent will be void. Noterik may assign these Terms of QANDR Services or delegate its duties hereunder without restriction and without the requirement of prior notice to you.
20. How to contact us
You may contact us by visiting: https://www.noterik.nl
Noterik’s mailing address is:
Noterik B.V. Prins Hendrikkade 193-C 1011 TD, Amsterdam The Netherlands.
Please read this section carefully. It affects your rights.
Most disputes can be resolved informally. If you have a concern, please contact us. In the unlikely event that we are unable to resolve your concern to your satisfaction (or if we haven’t been able to resolve a dispute that Noterik has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small-claims court, instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. It uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration will take place on an individual basis; class arbitrations and class actions are not permitted. Whether to agree to arbitration is an important decision, and in making it you should not rely solely on the information in this agreement. You may opt-out of this arbitration provision by following the instructions below.
(1) Noterik and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted and expressly includes claims brought under any statute, regulation, or legal or equitable theory. It includes, but is not limited to:
Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);