interlinkONE® ‘s QREATE & TRACK[sm]
TERMS OF SERVICE AGREEMENT (the “Agreement”)
By clicking “agree” as part of our sign up procedure, and/or by using our QR Services, you agree you are legally bound by this Agreement.
This Agreement contains the terms and conditions upon which we provide QReate & Track for your product and services. Prior approval is required for VAR and other resellers — please contact sales@interlinkONE.com for details.
[A] WHO WE ARE.
We are interlinkONE, Inc., a Massachusetts corporation with an address at 260-A Fordham Road, Suite 100, Wilmington, Massachusetts 01887 (“us” or “interlinkONE“).
[B] WHO YOU ARE.
You (the “End-User“) are the individual or (if you identify a partnership, corporation, limited liability company or other entity name) the entity identified in our signup process. If you are an individual you are at least 18 years old, or, if required by the law where you reside, at least whatever older age is required legally to be bound by this Agreement.
[C] ABOUT QREATE & TRACK.
1) “QReate & Track,” as provided under this Agreement, consists of:
A) “QR Services” which enable you to create QR Codes and access End-User Analytics from a website, and any related email, documentation, and other support we may provide, as specified by the Service Plan you choose. “End-User Analytics” means the analytic, tracking and other information that may be generated in connection with your use of QReate & Track. You acknowledge and accept QReate & Track may evolve to adopt to changes in technology, legal and market conditions, and otherwise.
B) A “License” to use related software on your computer or mobile device which may take the form of browser applets or other non-downloadable software, and/or software hosted by us (collectively “the Software“).
2) As to our Service Plans:
A) Reasonable technical support is only available to paying account holders current in payment on applicable services, and is available by email to help@qreateandtrack.com.
B) Non-paying (free) account holders may not block the advertisements, if any, that may be delivered in connection with use of QR Services.
[D] PROVISION OF QR SERVICES.
Subject to the terms and conditions of this Agreement, we will provide QR Services to you with the features and at the times specified in the applicable Service Plan.
[E] GRANT OF LICENSE.
You may use the Software in connection with QR Services, but only as an incident of your right to receive QR Services, and to the extent of such services, and for the time they are provided.
[F] CONDITIONS.
Your right to QR Services (and your incidental right to use the Software) are subject to the following conditions, each of which is material:
1) Timely payment in US currency for the applicable Service Plan. We bill monthly, and payments are non-refundable. Changes to Service Plan fees, if any, will be made by prior notice to the email address associated with your account. You are responsible for all taxes, levies, and duties that may be charged within or outside the United States.
2) “End-User Content” means the trademarks, product information, and other data and materials you may provide to us in connection with QR Services, including the website URLs and other Internet destinations that might be invoked by reason of data you provide. You own, and hereby grant to us, all necessary or desirable right, title and interest to End-User Content for us to provide QR Services in connection with it.
3) Additional interlinkONE service fees may be required in the event you seek to change previously provided End-User Content, or your Service Plan.
4) You may use QR Services either:
A) solely for your benefit in connection with your products and/or services. Your rights to QR Services and the Software are non-exclusive, non-assignable, and non-transferable. You may not, other than allowed under this Agreement, sell, resell, rent or lease QR Services; or
B) as a value added reseller, which we permit only upon our prior approval. Please contact us at sales@interlinkONE.com for details. In general, our approval is subject to the added conditions (i) your agreement with the ultimate recipient of our QR Services is consistent with this Agreement, and (ii) you are responsible for compliance of the recipient, and will indemnify us and hold us harmless for any breach.
5) You will keep secure your password access to QR Services, and inform us promptly if you believe your access may no longer be secure.
6) You will use QR Services in accordance with applicable law, including all laws of your jurisdiction.
7) You will not use, copy, modify, or transfer the Software except as an incident of QR Services in accordance with this Agreement.
8) You will not reverse engineer the Software, or disclose the non-public confidential information that you may learn by using the Software or otherwise by obtaining QR Services, except as permitted by this Agreement. You will, in particular, not use QR Services to obtain interlinkONE’s non-public confidential information to directly or indirectly compete with interlinkONE.
9) You will comply with all applicable rules and regulations of third party service providers including mobile telephone and internet service providers.
10) You accept that End-User Content and End-User Analytics be lost upon the downgrading to a different Service Plan, or upon the termination of QR Services for any reason.
[G] OWNERSHIP. You acknowledge and accept that:
1) Our trademarks include interlinkONE® and a related logo, and QReate & Track[sm] and a related logo. You do not, by reason of this Agreement or otherwise own any right, title or interest to them.
2) You may use and disclose your End-User Analytics on a royalty-free basis in any manner consistent with consumer privacy, data protection, and other laws.
3) We solely own, and may use and disclose, aggregations of the End-User Analytics of multiple customers, and all related data we may create regarding market trends and otherwise. Such use and disclosure will not disclose End-User Analytics specific to you, or otherwise identify you.
4) All rights to QR Services and the Software not explicitly granted in this Agreement are reserved by interlinkONE.
5) “QR CODE” is a trademark registered on the USA Supplemental Register (Reg. No. 2435991) by Denso Wave, Inc., a corporation organized in Japan (“Denso”). Denso invented QR Codes, and owns certain patents related to them which it permits to be used freely as further explained on Denso’s website at http://www.qrcode.com/en/patent.html
6) As long as you are a customer of our QR Services, we may identify you as such on (for example) our website for QReate & Track.
[H] TERMINATION.
1) We may terminate QR Services, including your access to End-User Analytics and the Software, at any time, upon your breach of a material condition. We will, in our discretion, provide a limited opportunity to cure such breaches.
2) In the event we terminate QR Services for any reason other than your breach of a material condition, we will endeavor to provide prior notice. The failure of interlinkONE to provide such notice will not be deemed a breach of this Agreement. interlinkONE otherwise reserves the right at any time, and from time-to-time, to modify, discontinue (temporarily or permanently), its QR Services in whole or in part.
3) You may terminate QR Services at any time by notice to interlinkONE before fees are due under the applicable Service Plan. Such termination may not automatically or promptly also terminate all functionality of QR Codes you purchased from us.
[I] DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES.
1) You represent and warrant to interlinkONE that:
A) you own all right, title and interest in whatever End-User Content you may provide, and that you have all power and authority to enter into and to perform this Agreement;
B) no End-User Content (including that invoked by any website URLs or other Internet destinations you provide) will contain material that is defamatory, malicious, intentionally destructive, or otherwise illegal, or otherwise prohibited from disclosure or distribution under privacy, intellectual property, national security or other laws.
2) We represent and warrant that we have sufficient copyright rights to provide QR Services in accordance with this Agreement. In the event QR Services should become unavailable (including by the cessation of QR Code functionality and related unavailability of End-User Analytics) by a claim of infringement or other breach of third party rights, interlinkONE will, in its discretion, either change its business and processes to become non-infringing, or obtain any necessary rights, or terminate this Agreement.
3) We will, on your request (and if applicable under your chosen Service Plan), cooperate for limited periods of testing and QR Code implementation,
4) Apart from the preceding explicit representations and warranties in this Section, interlinkONE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING AS FOLLOWS:
A) Except as explicitly provided above, interlinkONE SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF TITLE AND NON-INFRINGEMENT, INCLUDING NON‑INFRINGEMENT OF PATENTS. You accept and agree these disclaimers are reasonable because, among other reasons, of legal uncertainty regarding when a patent may apply or be enforceable, and the potential for unfair patent enforcement by non-practicing entities; and
B) Except as explicitly provided in this Agreement, QR Services and the Software are otherwise provided “as is” and “as available.” interlinkONE SPECIFICALLY DISCLAIMS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, and warranties QR Services will be uninterrupted, timely, secure, error-free, accurate or reliable.
[J] INDEMNITY.
1) Each party will indemnify and hold the other harmless for any breach by the party of its explicit representations and warranties in this Agreement.
2) In addition, you will indemnify and harmless interlinkONE by reason of your breach of any material condition in this Agreement.
3) These indemnification obligations are conditioned upon the indemnified party (you or us, as applicable) providing the indemnifying party (you or us, as applicable) with prompt written notice of the claim for which indemnity is sought together with all reasonable assistance and information for the defense of such action. interlinkONE’s indemnification obligations are additionally conditioned upon (A) your use of the Services and the Software in accordance with interlinkONE’s guidelines and instructions, and (B) your performance of this Agreement without a material breach.
[K] DAMAGE LIMITATIONS. IN NO EVENT AND UNDER NO THEORY WILL INTERLINKONE BE LIABLE:
1) for direct damages arising from the failure QR Services in excess of 2X (two times) the service fees received from you for affected QR Services for the affected period; or
2) FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING ANY BASED UPON RELIANCE, TORT, OR LOSS OF PROFITS), EVEN IF INTERLINKONE IS ADVISED IN ADVANCE THAT SUCH LOSSES MAY BE POSSIBLE; or
3) for claims caused by gross negligence; or
4) for claims arising out of actions (or failure to act) by third parties, including in connection with the transmission of unencrypted End-User Content over third part networks. This provision is not intended to limit our liability for third party claims for which we specifically agree above to provide indemnification.
[L] ENFORCEABILITY.
1) This Agreement is governed by the laws of Massachusetts applicable to agreements entered into and fully performed there (but excluding its choice of law provisions), and by applicable federal law. If any provision is held invalid or unenforceable, the applicable court may narrow or otherwise modify them in a manner consistent with the intent of the parties become valid and enforceable, and all remaining terms and conditions will remain in full force and effect. The exclusive jurisdiction and venue in the event of any disputes will be the state and federal courts within Boston, Massachusetts.
2) This Agreement together with the applicable Service Plan contains our entire agreement (superseding all prior oral and written communications with respect to its subject matter). In the event of any conflict or inconsistency between this Agreement and any Service Plan, this Agreement will control. This agreement binds the parties and their heirs, successors and assigns, including successors by reason of merger, consolidation, the acquisition of all or substantially all of the party’s assets, and other legal methods of succession including (in the case of interlinkONE) by the spinoff of our QR Code related business into a subsidiary or other independent legal entity. All provisions of this Agreement (such as, without limitation, the indemnification and damages limitations) that implicitly survive termination will survive.
3) You acknowledge and accept interlinkONE would be irreparably damaged in the event of any breach (or threatened breach) by you that could affect the non-competition and Software protection provisions of Section [F], or interlinkONE’s ownership and rights to the Software, trademarks or data under Section [G]. Accordingly interlinkONE is entitled to specific enforcement of such sections without bond, other security or proof of damages, to an injunction and other appropriate equitable remedies with respect to breaches and threatened breaches in addition to such other remedies as interlinkONE may have.
Questions about the Terms of Service should be sent to support at help@qreateandtrack.com
