End user agreement for Qnext (Universal Messenger)
IMPORTANT-READ CAREFULLY: Please read this End User License Agreement ("EULA") carefully and be sure that you understand it. This EULA is a legal agreement between you (either an individual or a single entity) and Qnext™ Corp. ("Qnext"). You must review and either accept or reject the terms of this EULA before installing or using the Software (as that term is defined below). CLICKING THE "I ACCEPT" BUTTON BELOW IS JUST LIKE SIGNING A CONTRACT WRITTEN ON PAPER. BY CLICKING THE "I ACCEPT" BUTTON OR INSTALLING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS EULA, UNDERSTAND THEM AND AGREE TO BE LEGALLY BOUND BY THEM.
If all or some portion of the Software has been licensed by another party for your use (e.g., by your employer or by an individual or a company with which you conduct business), your right to use the Software and to obtain any related Services (as that term is defined below) is subject to the terms and conditions of the agreement(s) between Qnext and the other party, whether the other party has agreed to the terms of this EULA or to the terms of one or more separate, written agreement(s). Even if your use of the Software is sponsored by another party, the terms of our Qnext Software Privacy Statement and our Qnext Acceptable Use Policy, both of which are included below and incorporated into this EULA by this reference, apply to you. You are agreeing to the terms and conditions of these policies by clicking the "I Accept" button below, and we encourage you to review them before you click "I Accept." By clicking "I Accept," you also are consenting to the Software's establishment of peer-to-peer connections as described below in Section 8.
"Account" means a set of Qnext shared zones and identities accessible by a single login to the Software.
"Basic Services" means those peer-to-peer services that Qnext provides directly, or indirectly through a third party, within every version of the Software, without a paid subscription.
"End User" means you (if you are an individual) and any natural person whose use of the Software you sponsor.
"Premium Services" means peer-to-peer services that Qnext provides directly, or indirectly through a third party, under a paid subscription.
"Promotional Software" means Software that includes Basic Services and a trial version of Premium Services, distributed by Qnext and by Qnext partners free of charge.
"Services" means the peer-to-peer Basic Services and Premium Services that Qnext provides to you directly, or indirectly through a third party, for use within the Software.
"Software" means the Qnext peer-to-peer client software accompanying this EULA, in object code form, together with any of the following that may form a part of it or subsequently be provided by Qnext for use with it: (i) tools, toolsets, "skins" and other software applications or components; (ii) artwork, photographs, and video or audio content; and (iii) any Updates to or Upgrades of any of the foregoing that may be covered by this EULA.
"Updates" means bug fixes, patches, or other revisions to or modifications of Software that Qnext provides to you or any End User, including those it makes generally available to customers that subscribe to its software maintenance services. An Update typically is identified by a change in a number and/or letter to the right of the first decimal point in a product's version number.
"Upgrade" means a major release of Software, as determined by Qnext in its sole discretion. An Upgrade typically is identified by a new product name or a new number to the left of the first decimal point in the version number of an existing product name.
"Website" means Qnext's website located at http://www.qnext.com.
The Software is licensed, not sold. You acknowledge that the Software (including any changes you may request or suggest) is the property of Qnext and/or its licensors. Title to each copy of the Software and all related intellectual property rights embodied in or represented by the Software will remain with Qnext and/or its licensors at all times, as will all other rights not explicitly granted to you under this EULA.
This EULA grants you the following rights:
Software. Qnext grants End Users a perpetual, nonexclusive license to install and use the Software on an unlimited number of computers and from an unlimited number of Accounts that they create. However, if you subscribe to premium services, then such services may only be used by each End User from a single Account per End User. You hereby accept responsibility for each End User's use of the Software and Services and their compliance with the terms of this EULA.
Plug-in services. Upon payment of all applicable license fees, you may utilize the Software's core functionality in connection with Qnext's or third party services.
Third-Party Access to Software Functionality. You may permit any number of individual users to access the Software's functionality directly or indirectly, provided that each user who accesses the Software's functionality must possess current and valid license rights to a copy of the same (or a higher) edition and version of the Software. This right does not apply to any edition of the Software marked "Promotional Edition" or any similar designation.
Feedback. You grant Qnext an unrestricted, royalty-free right to use all feedback you report to Qnext, including without limitation software bugs, usability and performance problems, for purposes of correcting and/or enhancing the Software and Services and developing other products and services.
4. PROMOTIONAL SOFTWARE.
Notwithstanding anything to the contrary in this EULA, if Qnext provides Promotional Software to you, then (a) your use of such software and the Services provided therewith is subject to the terms of this EULA, and may be terminated by Qnext without notice at any time; (b) Qnext may elect at any time to re-classify a Basic Service as a Premium Service that requires a paid subscription; and (c) in light of the fact that Promotional Software is provided to you free of charge, neither Qnext nor any Released Party will be liable for direct damages related to Promotional Software, as explained more fully in Section 10(b). Promotional Software may include a "time-out" mechanism that will automatically downgrade the software and prevent access to Premium Services at the end of a trial period.
5. BETA SOFTWARE.
Use. Notwithstanding anything to the contrary in this EULA, if Software is designated as pre-release or beta software, then you may use the Software (and any Services Qnext chooses to provide you in connection with it) in a manner consistent with the terms of this EULA solely for evaluation purposes until the earlier of (i) the date of the commercial release of the non-beta version of the Software, or (ii) 10 days after the date on which you or we send written notice to the other terminating this EULA, which either of us may do at any time.
Acknowledgement and Additional Liability Limitation and Warranty Disclaimer. You acknowledge that all Software designated as pre-release or beta Software may contain bugs, may not operate properly or perform all intended functions, may interfere with the functioning of other software applications, and may cause errors, data loss or other problems. In light of the fact that pre-release or beta Software is provided to you free of charge, neither Qnext nor any Released Party will be liable for direct damages related to pre-release or beta Software, as explained more fully in Section 10(b).
Feedback. You agree to promptly report to Qnext any bugs, usability or performance problems you experience using the pre-release or beta Software, and you grant Qnext an unrestricted, royalty-free right to use all such feedback for purposes of correcting and/or enhancing the Software and Services and developing other products and services.
Confidentiality. You agree not to disclose pre-release or beta Software, or any information regarding it that Qnext designates as "confidential" or "proprietary" (or some similar designation) at the time of disclosure or in a letter or other writing sent to you within 30 days after its initial disclosure, except to your End Users, employees, consultants and advisors to whom disclosure is necessary for purposes of your evaluation of the Software, and who are legally bound to maintain the confidentiality of the Software and such related information. These restrictions will not apply to any information that (a) is publicly known at the time of its disclosure; (b) is lawfully received from a third party not obligated to maintain it in confidence; (c) is published or otherwise made known to the public by Qnext; (d) you generated independently before you received it, as evidenced by your records; or (e) is required to be disclosed under any law, governmental rule or regulation or a valid court order.
6. RESTRICTIONS AND LIMITATIONS.
You agree to comply with the following restrictions and limitations, and you agree not to permit others (including any End User whose use of the Software you sponsor) to violate them:
Copying, Distribution and Use. You may not copy the Software, except in connection with installation of the Software as provided above in Section 3(a) and to make one copy of the Software solely for backup or archival purposes. You may not sell, rent, lease, sublicense or redistribute Software or its activation key(s), or use or permit others to install or directly or indirectly access or use the Software, its functionality or its activation key(s), except as provided in this EULA.
Proprietary Notices. You may not alter or remove any copyright, trademark, patent, or other protective notices contained in or on the Software.
Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile or disassemble the Software or otherwise attempt to derive its source code, except and only to the extent that any of these activities is permitted by applicable law despite this restriction.
Modifications and Derivative Works. You may not modify or create derivative works of the Software.
Use of Prior Versions. The Software will automatically update and upgrade itself when it is launched, if an Upgrade or Update of the Software is available. You may not continue to use prior versions of the Software after the Software is updated or upgraded.
Acceptable Use. You may not use the Software for a purpose or in a manner not permitted by the terms of Qnext's Acceptable Use Policy (as it may be amended from time to time), including, without limitation, infringement of intellectual property rights.
UserIDs and Passwords. Each Account userID password is intended solely for your use (or use by another End User for whom you have acquired a license). You (and your licensed End Users) are solely responsible for maintaining the confidentiality and security of your userID passwords. You are solely responsible and liable for any and all use of your userID passwords and for activities that occur on or through your Accounts. You agree to notify us immediately about any unauthorized access to or use of any of your Accounts. The Software contains technological measures designed to prevent its unlicensed or illegal use. You agree that we may enforce those measures.
7. MAINTENANCE AND SUPPORT.
Technical support for the Software may be found in the Help menu within the Software and on the Website. Unless you subscribe to an enhanced maintenance and/or support offering, you are not entitled to receive additional maintenance or support for the Software (though any Updates or Upgrades Qnext may provide to you will be covered by this EULA, unless Qnext requires you to accept a new agreement at the time they are provided). If you subscribe to a Qnext maintenance and/or support offering, Qnext will provide you with maintenance and/or support services corresponding to the service level(s) to which you have subscribed, as set forth in the Maintenance and Support Terms and Conditions accessible on the Website (at www.qnext.com/support) or the terms of any separate agreement you may enter into with Qnext related to such services. Whether or not you subscribe to a maintenance and/or support offering, Qnext reserves the right to provide you with Updates or supplements to the Software via automatic download when we consider it necessary to do so to ensure that the Software functions properly. Any technical information you provide to Qnext in connection with support services may be used by Qnext for its business purposes, including product and service development, subject to the terms of our Qnext Software Privacy Statement, which is accessible on the Website.
8. CONSENT TO ESTABLISHMENT OF PEER-TO-PEER CONNECTIONS.
The Software is designed to enable "peer-to-peer" connections among users and computers and other devices for purposes of direct communication, data exchange and interaction among people and machines, with minimum involvement of central computer servers. The Software makes certain information about your Qnext account and Computer known to other users and computers with which you interact. Peer-to-peer data exchange occurs whenever the Software is running on your Computer, whether or not you are active in a "shared zone" or even actively using the Software. You acknowledge and consent to the fact that the Software creates such peer-to-peer connections, and you agree that Qnext is not responsible for the conduct of any party (or their computers) who interacts with you or your Computer as a result of your installation or use of the Software or the Services.
9. WARRANTY DISCLAIMER.
QNEXT AND ITS LICENSORS AND LICENSORS' DISTRIBUTORS DISCLAIM ALL WARRANTIES WITH RESPECT TO ALL SOFTWARE AND SERVICES AND ALL THIRD PARTY PRODUCTS OR SERVICES YOU OR END USERS MAY UTILIZE IN CONNECTION WITH THE SOFTWARE OR THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. IN PARTICULAR, QNEXT DOES NOT REPRESENT THAT THE SOFTWARE OR THE SERVICES ARE ERROR FREE, WILL OPERATE IN AN UNINTERRUPTED MANNER, ARE COMPLETELY SECURE, OR WILL INTEROPERATE WITH THIRD PARTY SOFTWARE OR SERVICES. QNEXT ASSUMES NO RESPONSIBILITY FOR THE SECURITY, PROPRIETY OR COPYIGHT COMPLIANCE OF ANY CONTENT EXCHANGED USING THE SOFTWARE OR THE SERVICES. THE SOFTWARE AND THE SERVICES ARE NOT DESIGNED OR MANUFACTURED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT SYSTEMS, OR WEAPON OR COMBAT SYSTEMS, IN WHICH THEIR FAILURE COULD LEAD DIRECTLY TO PERSONAL INJURY, DEATH, OR PROPERTY OR ENVIRONMENTAL DAMAGE. QNEXT DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES.
10. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW (INCLUDING ANY APPLICABLE CONSUMER PROTECTION LAWS OF A FOREIGN JURISDICTION), NEITHER QNEXT NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTROLLED OR CONTROLLING ENTITIES, LICENSORS OR LICENSORS' DISTRIBUTORS (EACH, A "RELEASED PARTY"), WILL HAVE ANY LIABILITY TO YOU OR ANY END USERS FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOST PROFITS, BUSINESS OR REVENUE, LOSS OF GOODWILL OR OTHER ECONOMIC ADVANTAGE, OR LOSS OF PRIVACY) ARISING OUT OF OR RELATED TO THIS EULA, THE SOFTWARE OR THE SERVICES, EVEN IF QNEXT OR A RELEASED PARTY HAS BEEN ADVISED OF, OR KNEW OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING PARAGRAPH 10(a) ABOVE OR ANYTHING ELSE TO THE CONTRARY SET FORTH IN THIS EULA, IF YOUR CLAIMED DAMAGES ARISE FROM OR RELATE TO SOFTWARE OR SERVICES COVERED BY SECTION 4 OR 5 OF THIS EULA, THEN, TO THE MAXIMUM EXTENT PERMITTED BY LAW (INCLUDING ANY APPLICABLE CONSUMER PROTECTION LAWS OF A FOREIGN JURISDICTION), NEITHER QNEXT NOR ANY RELEASED PARTY WILL HAVE ANY LIABILITY TO YOU OR TO ANY END USERS FOR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS EULA, THE SOFTWARE OR THE SERVICES, INCLUDING BUT NOT LIMITED TO DIRECT DAMAGES, EVEN IF QNEXT OR A RELEASED PARTY HAS BEEN ADVISED OF, OR KNEW OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE SCOPE OR EFFECT OF SECTIONS 10(a) OR (b) ABOVE, IN NO EVENT WILL QNEXT'S AND THE RELEASED PARTIES' TOTAL LIABILITY WITH RESPECT TO ALL CLAIMS ARISING OUT OF OR RELATED TO THIS EULA, THE SOFTWARE OR THE SERVICES (INCLUDING CLAIMS OF NEGLIGENCE AND STRICT LIABILITY) EXCEED THE LOWER OF (i) THE AGGREGATE DIRECT DAMAGES ACTUALLY INCURRED BY YOU AND YOUR END USERS, OR (ii) US $10.
SOME JURISDICTIONS LIMIT THE EXCLUSION OF DAMAGES OR LIMITATION OF LIABILITY, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF ANY PART OF THE EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY SET FORTH IN THIS EULA IS UNENFORCEABLE UNDER APPLICABLE LAW, QNEXT'S AND THE RELEASED PARTIES' AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11. TERM AND TERMINATION.
The term of this EULA will commence upon installation or use of the Software and continue indefinitely, unless you and Qnext enter into a new agreement that entirely replaces this EULA, or unless Qnext terminates this EULA as provided herein. Without prejudice to any other rights, Qnext may terminate this EULA if you fail to comply with its terms and conditions. If Qnext terminates this EULA, (i) you must immediately stop using the Software and destroy all copies of the Software and all of its component parts, and (ii) Qnext will have no further obligation to provide any Services to you or any End Users as of the termination date. The parties' respective rights and obligations under Sections 2 (Ownership), 6 (Restrictions and Limitations), 9 (Warranty Disclaimer), 10 (Exclusion of Damages and Limitation of Liability), and Section 12 (General Provisions) will survive the termination of this EULA. The term of any Services offering to which you subscribe will be extended automatically for successive periods equal to the duration of the initial subscription period, and on Qnext's standard terms and prices then in effect, unless either party gives notice of cancellation to the other at least 60 days before the subscription expires.
12. GENERAL PROVISIONS.
Application Sharing. The Software may contain features that enable software applications to be shared among two or more computers. Use of third party software through any application sharing functionality in the Software may require the third party's consent. Please consult the license agreement associated with the third party software or contact the third party regarding permitted uses of its software.
Export Restrictions. You agree to comply with all applicable laws and regulations of governmental bodies and agencies related to use of the Software and Services and your performance under this EULA. The Software also may be subject to the export, import or other laws of other countries. You represent that you are eligible to receive favorable treatment under current Canadian export control laws and regulations, and that you will not use or transfer the Software in violation of any Canadian, U.S. or foreign laws or regulations, or permit others to do so.
Waiver. No delay or omission by either party to exercise any right or power arising upon the other party's nonperformance or breach will impair that right or power or be construed as a waiver of it. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of nonperformance or b