These terms and conditions of use (“Terms and Conditions”) are a legal agreement between the person or entity who is registering for access to use the service of Quizworks (“You”, “Your,” or “Licensee”) and Quizworks B.V. (“Quizworks”, “Licensor”, or “we”).
These terms and conditions govern our respective rights and obligations with respect to your access and use of the service of Quizworks (The “Service”) and the associated electronic documentation (collectively, the “Materials”). by clicking the acceptance button or accessing or using the service through one of our websites (the “Sites”), you are agreeing to be bound by all of the terms and conditions.
If you do not agree to all of the terms and conditions, Quizworks is unwilling to grant you access to or use of the service. In such event, do not click the acceptance button or access or use the service.
- License Grant.
Subject to the provisions of these Terms and Conditions and Licensee’s payment of the Fees in accordance with Section 3, below, Licensor grants to Licensee a non-exclusive, non-transferable, non-sublicensable right to remotely access and use the Service for business purposes only (“License”).
Licensor may change, revise, modify, delete or discontinue (either permanently or temporarily) the functionality or scope of the Service at any time at its sole discretion (an “Update”). Following such Update, as applicable, (i) Licensee can elect to terminate this License in accordance with Section 15 or continue to access and use the Service in accordance with the provisions of these Terms and Conditions and (ii) the definition of the term “Service” shall be automatically amended without any further action on the part of any of the parties to include such Update.
- Fees, Payments, and Taxes.
The fees for access and use of the Service under this License (“Fees”) are to be billed to your credit card (provided during the registration process) at the start of every month. Licensee is responsible for all sales, excise, VAT and all other taxes associated with Licensee’s use of the Service other than taxes on Licensor’s net income. Licensor may increase the Fees (and bill your credit card for such increased Fees) at any time and from time to time upon thirty (30) days prior notice to Licensee.
- Location of Service and Access.
The Service will be hosted on one or more servers either owned or licensed by Licensor and will be accessible by Licensee over the Internet. In order to access the Service, Licensee will be required to register with Licensor (an “Account”) and will be provided with a unique user name and password for each such Account (“Account Access Information”). Licensor has the right but not the obligation to monitor access to the Service and, without limiting any remedies that it may have hereunder or at law, may deny access to any Licensee who violates these Terms and Conditions.
- Certain Rights and Restrictions Regarding Use of the Service.
- Equipment and Service. Licensee shall provide at its expense all hardware, Internet service and other items necessary for the access and use of the Service.
- Copies. The Service is protected by international copyright and trade secret laws and treaties. Except as otherwise provided in this Section, Licensee may not make copies of the Service or accompanying materials.
- Reverse Engineer. Licensee may not, nor cause or permit any of its employees or any third party to, modify, adapt, translate, reverse engineer, decompile, disassemble, translate or create derivative works based on the Service without the prior written consent of Licensor, which Licensor may withhold in its sole discretion.
- Rent, Lease and Transfer. The Service is licensed only to Licensee. Licensee shall not sublicense, transfer, lease, assign, rent, distribute, sell or otherwise dispose of the Service (including any of the materials) on a temporary or permanent basis except with the written consent of Licensor, which Licensor may withhold in its sole discretion. Prior to transferring the Service to an authorized transferee, the transferee shall agree in writing to be bound by all of these Terms and Conditions.
- Access Restrictions and Security Licensor shall have no liability for any loss, claim, damages or other liability whatsoever that may arise from the unauthorized use of any Account Access Information. If any of Licensee’s Account Access Information is lost or stolen, it is Licensee’s responsibility to notify Licensor of such loss or theft so that the account can be deactivated and a new username and password can be provided. Although Licensor has taken measures to safeguard the security of information submitted in using the Service, Licensor cannot guarantee the security of information transmitted during use of the Service or stored by Licensor and shall not be liable to Licensee or any other person or entity in any way for any compromise of the security of such information.
- Manner of Use. Licensee is solely responsible for all data uploaded into the Service and/or the Sites (“Licensee’s Content”) and all activity that occurs under Licensee’s Accounts. Licensee shall not use the Service for any illegal or unauthorized purpose(s). Licensee must not, in the use of the Service, violate any applicable laws (including but not limited to U.S. copyright laws, and other applicable federal, state and local laws). Licensor may, but has no obligation to, remove Licensee Content and Accounts containing Licensee Content that Licensor determines in its sole discretion is/are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property, these Terms and Conditions, or applicable law (in addition to all rights of Licensor).
- Bandwidth Usage and Storage. Licensor may, in its discretion, disable any Account or limit bandwidth usage should an Account’s bandwidth consumption exceed average usage (as determined by Licensor) in any one month period. Licensor also may, in its discretion, disable any Account or limit storage capacity with respect to such Account should Licensee’s storage exceed average usage (as determined by Licensor).
- Ownership of Service and Intellectual Property Rights.
Licensor does not sell the Service to Licensee, but only grants Licensee a license to use the Service according to these Terms and Conditions. Licensor and its licensors retain ownership in the Service and all intellectual property rights in the Service, including without limitation any and all patents, copyrights, trade secrets, trademarks and any other proprietary and other rights. Licensee agrees that Licensor may audit Licensee’s use of the Service for compliance with these Terms and Conditions at any time, upon reasonable notice. All rights not specifically granted under these Terms and Conditions are reserved by Licensor and its licensors.
- Relationship of Parties.
In performing any and/or all of our respective obligations under this License, Licensor and Licensee shall each operate as and have the status of being an independent contractor of the other party, and neither party shall act as or be an agent or employee of the other party.
Licensee acknowledges and agrees that these Terms and Conditions and the Service contain proprietary information of Licensor (“Confidential Information”), and Licensee hereby agrees to maintain the confidentiality of the Confidential Information using at least as great of degree of care as it uses to maintain the confidentiality of its own most confidential information. Notwithstanding the foregoing, in the event that Licensee is required by a valid order by a court or other governmental body to disclose Confidential Information, Licensee may disclose such Confidential Information provided that Licensee first gives Licensor prompt notice thereof in order to enable Licensee to have the opportunity to seek protection from such order of disclosure.
Licensee hereto represents and warrants to Licensor that: (i) it has the power and authority to enter into these Terms and Conditions. Further, Licensee agrees that Licensee possess the necessary skills and qualifications to competently use the Service in accordance with these Terms and Conditions.
- Indemnification of Licensor.
Licensee will defend, indemnify and hold harmless Licensor and its subsidiaries, licensors and affiliates (and their respective officers, directors, employees and agents) against any and all claims, losses, damages, liabilities, deficiencies, judgments, assessments, fines, costs and other expenses (including reasonable attorneys' fees and costs) arising from or relating to (i) accessing the Service, (ii) use or misuse of the Service (including any data or information input in the Service or file or database created thereby), and/or any hardware (if applicable) furnished by Licensor in connection therewith, including without limitation any disclosure of any person’s medical information in violation of HIPAA or any other applicable privacy law (“Privacy Laws”), and (iii) breach of any of the provisions of these Terms and Conditions.
- Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, THE SITES, THE SERVICE (INCLUDING ANY WRITTEN MATERIALS), AND ANY SUPPORT ARE ALL PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND ANY WARRANTY OF ERROR FREE APPLICATION OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR DOES NOT WARRANT THE USE, RESULTS OR PERFORMANCE OF THE SERVICE, THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT THE SERVER(S) THAT MAKE(S) THE SERVICE AVAILABLE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- Limitation of Liability
NEITHER LICENSOR NOR ANY PERSON OR ENTITY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OPERATION OR SUPPORT OF THE SERVICE SHALL BE LIABLE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, PRODUCT LIABILITY OR OTHER CAUSE OF ACTION) TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS REVENUE OR PROFITS, BUSINESS INTERRUPTION FOR ANY REASON, LOSS OF BUSINESS INFORMATION OR DATA, INJURY TO REPUTATION, PERSONAL INJURY (WHETHER PHYSICAL OR MENTAL OR BOTH), GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OR VIOLATION OF ANY APPLICABLE PRIVACY LAWS ARISING OUT OF (I) THE USE, MISUSE, OR INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE’S TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) TERMINATION OF ANY OF LICENSEE’S ACCOUNTS; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICE OR USE THEREOF, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S ENTIRE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO LICENSOR UNDER THESE TERMS AND CONDITIONS.
This License shall become effective upon your agreement to the provisions of these Terms and Conditions and shall remain effective until terminated in accordance with this Section. Licensor may immediately terminate this License without notice if you fail to comply with any provision of these Terms and Conditions. Licensor has the right to immediately terminate this License without notice if it becomes aware that Licensee unlawfully transmits through the Sites copyrighted material without a license, valid defense or fair use privilege to do so or if Licensee causes or permits violation of Sections 6, 8 or 9 of these Terms and Conditions. Additionally, either party may terminate this License at any time for any reason however, Licensor shall not refund any Fees or portion of any Fees to Licensee.
- Effect of Termination. i) Licensee shall, as soon as is commercially practical, cease from using and return all Confidential Information; and (ii) except as otherwise specifically provided in these Terms and Conditions, all rights and licenses granted to each party by the other party hereunder shall automatically cease and revert back to the granting party without any further action. All of Licensee’s uploaded data residing on Licensor’s server(s) as of the date of termination shall be returned upon the request of the Licensee.
- Survival Upon Termination Sections 3, 5, 6, 7, 8, 9, 10, 11, 12 and 17 and all other provisions of these Terms and Conditions intended to survive termination or expiration of this License will survive the termination or expiration of this License without limitation.
All notices required by these Terms and Conditions or given in connection with this License shall be deemed given as of the day they are emailed to you or posted on the Sites. The email address of record for notices and requests in connection with this License shall be deemed to be the email address provided by the Licensee at the time of Account creation. Licensor is not responsible for the deliverability or changes to the email address. Notification of any change to the Licensee’s email address is the sole responsibility of the Licensee.
- Injunctive Relief
Licensee acknowledges that breach of Sections 5, 6 and/or 7 of these Terms and Conditions will give rise to irreparable injury to Licensor, and leave Licensor inadequately compensated in damages. Accordingly, Licensor may seek and obtain injunctive relief against Licensee’s breach or threatened breach, in addition to any other legal remedies, such as (but not limited to) suit for copyright infringement. Licensee further acknowledges and agrees that this provision is necessary for the protection of Licensor’s legitimate business interests and is reasonable in scope and nature.
- These Terms and Conditions shall be governed and construed in accordance with the laws of the Netherlands.
- Licensee hereby consents to the exclusive jurisdiction and venue of the courts of the Dutch courts in connection with all disputes arising out of or relating to these Terms and Conditions.
- In the event that any provision of these Terms and Conditions is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any remaining promises shall not in any way be affected or impaired and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefor.
- These Terms and Conditions are the complete agreement between the parties relating to Licensee’s license of the Service, and it may not be modified, amended, or in any way altered except in writing signed by both parties.
- The provisions of these Terms and Conditions shall be interpreted and construed in accordance with their fair meanings, and not strictly for or against any party, regardless of which party may have drafted these Terms and Conditions or any specific provision of these Terms and Conditions.
- The waiver of any provision of these Terms and Conditions shall not be effective unless in writing and signed by the party against which it is sought to be enforced. The failure of any party to insist, in any one or more instances, upon performance of any of these Terms or Conditions shall not be construed as a waiver of future performance of any terms, covenants or conditions of this License, and the obligations of each party with respect thereto shall continue in full force and effect.
- These Terms and Conditions shall be binding upon the parties and their successors and permitted assigns. Licensee may not assign this License, or any portion thereof, to any third party without Licensor’s express prior written consent. Licensor may assign this License and all of its rights and obligations hereunder to any affiliate of such party or to any successor to Licensor’s business.