Terms of Service Agreement
Last Updated July 17, 2019
Please read this QOMPLX OS Terms of Service Agreement (the “Agreement”) carefully. Your use of the Solution (as defined below) constitutes your consent to this Agreement.
This Agreement is between you (the individual accessing and using the Solution and/or the entity on whose behalf you
are acting) and QOMPLX, Inc. (“ QOMPLX” or “ we” or “ us”) concerning your use of (including any access to) the
solution known as “QOMPLX OS” (together with any materials and services available on or through such solution,
successor solution(s) to such solution, and any website or mobile software application through which QOMPLX makes
such solution or successor solution(s) available to you, the “ Solution”). This Agreement hereby incorporates by
this reference any additional terms and conditions posted by QOMPLX through the Solution, or otherwise made
available to you by QOMPLX.
By using the Solution, you affirm that you are of legal age to enter into this Agreement. If you are an individual
accessing or using the solution on behalf of, or for the benefit of, any corporation, partnership, or other entity
with which you are associated (an “ Organization”), then, subject to the last sentence of this paragraph, you are
agreeing to these terms on behalf of yourself and such Organization, and you represent and warrant that you have the
legal authority to bind such Organization to this agreement. References to “you” and “your” in this Agreement will
refer to both the individual using the Solution and to any such Organization. Notwithstanding the foregoing, if such
Organization and QOMPLX enter into or have previously entered into a separate written agreement relating to the
Solution or other subject matter of this Agreement (any such agreement, an “ Organization Agreement”), such
Organization Agreement will govern such Organization’s access to and use of the Solution and supersede this
Agreement to the extent and as set forth in such Organization Agreement and, in the event of any conflict between
the provisions of this Agreement and such Organization Agreement, the provisions of such Organization Agreement
shall prevail.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 16 BELOW, REQUIRES
THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT
PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
1. Changes. We may change this Agreement from time to time by notifying you of such changes by any
reasonable means, including by posting a revised Agreement through the Solution. Any such changes will not
apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement
incorporating such changes, or otherwise notified you of such changes.
Your use of the Solution following any changes to this Agreement will constitute your acceptance of such
changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time
and without liability, modify or discontinue all or part of the Solution (including access to the Solution
via any third-party links); charge, modify or waive any fees required to use the Solution; or offer
opportunities to some or all Solution users.
2. Information Submitted Through the Solution. Your submission of information through the
Solution is governed by the Privacy Policy located at https://www.qomplx.com/privacy-policy (the “ Privacy
Policy”). You represent and warrant that any information you provide in connection with the Solution is and
will remain accurate and complete, and that you will maintain and update such information as needed.
3. Jurisdictional Issues. The Solution is controlled or operated (or both) from the United
States, and is not intended to subject QOMPLX to any non-U.S. jurisdiction or law. The Solution may not be
appropriate or available for use in some non-U.S. jurisdictions. Any use of the Solution is at your own
risk, and you must comply with all applicable laws, rules, and regulations in doing so. We may limit the
Solution’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction
that we choose.
4. Rules of Conduct.
In connection with the Solution, you must:
Be responsible for obtaining, maintaining, and paying for all hardware and all telecommunications and other
services needed to use the Solution. In connection with the Solution, you must not:
- Post, transmit, or otherwise make available through or in connection with the Solution any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent, or otherwise tortious; (c) obscene, indecent, pornographic, or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
- Post, transmit, or otherwise make available through or in connection with the Solution any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment (each, a “ Virus”).
- Use the Solution for any commercial purpose, including using the Solution for or in connection with any facility management, service bureau, or time-sharing purposes, services, or arrangements, or otherwise use the Solution for processing data or other information on behalf of any third party.
- Use the Solution for any purpose that is fraudulent or otherwise tortious or unlawful.
- Harvest or collect information about users of the Solution.
- Interfere with or disrupt the operation of the Solution or the servers or networks used to make the Solution available, including by hacking or defacing any portion of the Solution; or violate any requirement, procedure, or policy of such servers or networks.
- Restrict or inhibit any other person from using the Solution.
- Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute, or otherwise exploit any portion of (or any use of) the Solution except as expressly authorized herein, without QOMPLX’s express prior written consent.
- Reverse engineer, decompile, or disassemble any portion of the Solution, except where such restriction is expressly prohibited by applicable law.
- Remove or alter any copyright, trademark, or other proprietary rights notice on the Solution.
- Frame or mirror any portion of the Solution, or otherwise incorporate any portion of the Solution into any product or service, without QOMPLX’s express prior written consent.
- Systematically download and store Solution content.
- Use any robot, spider, site search/retrieval application, or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Solution content, or reproduce or circumvent the navigational structure or presentation of the Solution, without QOMPLX’s express prior written consent.
If you violate these rules, you do so at your own risk, accept full responsibility for any negative consequences that
may follow, and release QOMPLX from any and all liability of any kind resulting from such violation.
5.
Registration; No Sharing of User Name and Password. You may need to register or otherwise establish an
account to use all or part of the Solution. We may reject, or require that you change, any user name, password, or
other information that you provide to us in registering or otherwise establishing an account. Your user name and
password are for your personal use only and should be kept confidential. You must not provide your user name and
password to any other person or entity for purposes of accessing or using the Solution. You, and not QOMPLX, are
responsible for any use or misuse of your user name or password, and you must promptly notify us of any
confidentiality breach or unauthorized use of your user name or password, or your account. You must not, directly or
indirectly, allow any other person or entity to use your account to access or use the Solution.
6. Submissions. Solution users may make available certain materials (each, a “Submission”) through
or in connection
with the Solution (for example, reports generated by using the Solution), including through the Solution’s
interactive services or sharing functionality. QOMPLX has no control over and is not responsible for any use or
misuse (including any distribution) by any third party of Submissions. If you choose to make any of your personally
identifiable or other information publicly available through the Solution, you do so at your own risk, accept full
responsibility for any negative consequences that may follow, and release QOMPLX from any and all liability of any
kind for such consequences.
7. License. For purposes of clarity, you retain ownership of your Submissions. For each
Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable,
transferable, and fully sub-licensable (through multiple tiers) license, without additional consideration to you or
any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of,
adapt, modify and otherwise use, analyze, exploit and practice such Submission, in any format or media now known or
hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you
provide to us any ideas, proposals, suggestions, or other information or materials (“ Feedback”), whether related to
the Solution or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such
Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited, without
restriction, and does not place QOMPLX under any fiduciary or other obligation.
You represent and warrant that you
have all rights necessary to grant the licenses granted in this Section, and that your Submissions, and your
provision thereof through and in connection with the Solution, are complete and accurate, and are not fraudulent,
tortious, or otherwise in violation of any applicable law or any right of any third party. You further irrevocably
waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials
regarding each Submission that you may have under any applicable law under any legal theory.
8. Monitoring. We may (but have no obligation to) monitor, evaluate, alter, or remove Submissions
before or after
they appear on the Solution, or analyze your access to or use of the Solution. We may disclose information regarding
your access to and use of the Solution, and the circumstances surrounding such access and use, to anyone in
connection with performing services for you, in connection with operating the Solution, or for analytic,
statistical, security, quality control, and similar purposes (including in aggregate form, e.g., to analyze systems
performance).
9. Your Limited Rights. The Solution is licensed (not sold) to end users. Subject to your
compliance
with this Agreement, and solely for so long as you are permitted by QOMPLX (and, if applicable, your Organization)
to access and use the Solution, you may use any such portion of the Solution to which we provide you access under
this Agreement, solely for use in accordance with this Agreement. If you fail to comply with any of the terms or
conditions of this Agreement, you must immediately cease using the Solution.
10. QOMPLX’s Proprietary Rights. We and
our suppliers own the Solution, which is protected by proprietary rights and laws. As between you and us, the
Solution and all non-public information and materials (technical, business and otherwise) related to the Solution
(and the use of it), including Submissions of other Solution users and any reports generated by using the Solution,
are our “ Confidential Information” and you will not use or disclose to third parties Confidential Information,
except to the extent necessary to exercise your rights and fulfill your obligations under this Agreement or as
required by applicable law. Our trade names, trademarks, and service marks include the name “QOMPLX,” “QOMPLX OS,”
and any associated logos, marks, and designs. All trade names, trademarks, service marks, logos, and designs on the
Solution not owned by us are the property of their respective owners. You may not use our trade names, trademarks,
service marks, logos, or designs in connection with any product or service that is not ours, or in any manner that
is likely to cause confusion. Nothing contained on the Solution should be construed as granting any right to use any
trade names, trademarks, service marks, logos, or designs without the express prior written consent of the owner.
11. Third Party Materials; Links. Certain Solution functionality may make available access to
information, products,
services, and other materials made available by third parties, including Submissions (“ Third Party Materials”), or
allow for the routing or transmission of such Third Party Materials, including via links. By using such
functionality, you are directing us to access, route, and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy,
validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness, or safety of Third Party
Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be
inaccurate, misleading, or deceptive. Nothing in this Agreement will be deemed to be a representation or warranty by
QOMPLX with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may
block or disable access to any Third Party Materials (in whole or part) through the Solution at any time. In
addition, the availability of any Third Party Materials through the Solution does not imply our endorsement of, or
our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal
relationship between you and any such provider. YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT
TO ANY ADDITIONAL TERMS, CONDITIONS, AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE
OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
12. Open Source. The Solution may include open source components, which are licensed for use and
distribution by us
under applicable open source licenses. Use of these open source components is governed by and subject to the terms
and conditions of the applicable open source license.
13. Disclaimer of Warranties. The Solution (including any
information and materials made available to you in connection with using the Solution) is not for any third party’s
use or benefit. To the fullest extent permitted under applicable law: (a) the Solution and any products, services,
and Third Party Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without
any warranties of any kind, whether express, implied, or statutory; and (b) QOMPLX disclaims all warranties with
respect to the Solution and any products, services, and Third Party Materials, including the warranties of
merchantability, fitness for a particular purpose, non-infringement, and title. All disclaimers of any kind
(including in this section and elsewhere in this Agreement) are made for the benefit of both QOMPLX and QOMPLX
Beneficiaries and their respective partners, principals, directors, officers, employees, agents, representatives,
licensors, suppliers, and service providers (collectively, the “ Affiliated Entities”), and their respective
successors and assigns.
While we try to maintain the timeliness, integrity, and security of the Solution, we do not
guarantee that the Solution is or will remain updated, complete, accurate, correct, or secure, or that access to the
Solution will be uninterrupted. The Solution may include inaccuracies, errors, and materials that violate or
conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Solution. If you
become aware of any such alteration, contact us at legal@qomplx.com with a description of such alteration and its
location with respect to the Solution.
14. Limitation of Liability. To the fullest extent permitted under applicable
law: (a) QOMPLX will not be liable for any indirect, incidental, consequential, special, exemplary, or punitive
damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including
damages for loss of profits, use, or data, loss of other intangibles, loss of security of Submissions (including
unauthorized interception by third parties of any Submissions), even if advised in advance of the possibility of
such damages or losses; (b) without limiting the foregoing, QOMPLX will not be liable for damages of any kind
resulting from your use of or inability to use the Solution or from any products, services, or Third Party
Materials, including from any Virus that may be transmitted in connection therewith; (c) your sole and exclusive
remedy for dissatisfaction with the Solution or any products, services, or Third Party Materials is to stop using
the Solution; and (d) the maximum aggregate liability of QOMPLX for all damages, losses, and causes of action,
whether in contract, tort (including negligence) or otherwise, will be the greater of one hundred dollars ($100) and
the total amount, if any, paid by you to QOMPLX to use the Solution during the twelve (12) month period prior to the
claim. All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made
for the benefit of both QOMPLX and the Affiliated Entities, and their respective successors and assigns.
15. Termination. This Agreement is effective until terminated. QOMPLX may immediately terminate
this Agreement without
penalty or liability if continuing to perform under this Agreement could, in QOMPLX’s sole and absolute judgment,
result in QOMPLX’s non-compliance with any applicable law, rule, or regulation, in each case as in effect from time
to time. QOMPLX may terminate or suspend your use of the Solution at any time and without prior notice, for any
reason, including if QOMPLX believes that you have violated or acted inconsistently with the letter or spirit of
this Agreement. Upon any such termination or suspension (or any termination of this Agreement), your right to use
the Solution will immediately cease, and QOMPLX may, without liability to you or any third party, immediately
deactivate or delete your user name, password, and account, and all associated materials, without any obligation to
provide any further access to such materials. Sections 2 through 8 and 10 through 19 will survive any termination of
this Agreement.
16. Governing Law; Arbitration. This Agreement, and any dispute relating to this Agreement or the
subject matter of this Agreement, will be governed by and construed, interpreted, and enforced in accordance with
the laws of the Commonwealth of Virginia (but expressly excluding the Uniform Computer Information Transactions Act
(“ UCITA”) as enacted in Virginia) without giving effect to any choice of law rule that would cause the application
of the laws of any jurisdiction other than the internal laws of the Commonwealth of Virginia (excluding UCITA) and
regardless of your location. The parties expressly disclaim the applicability of, and waive any rights based on, the
Uniform Computer Information Transactions Act, the Uniform Commercial Code, or the United Nations Convention on
Contracts for the International Sale of Goods, however each may be codified or amended. All disputes arising out of
or related to this Agreement or the subject matter of this Agreement (including the Solution and the use thereof) or
any aspect of the relationship between you and QOMPLX under this Agreement, whether based in contract, tort,
statute, fraud, misrepresentation, or any other legal theory, will be resolved through final and binding arbitration
before a neutral panel of three arbitrators instead of in a court by a judge or jury and you agree that QOMPLX and
you are each waiving the right to trial by a jury. You agree that any arbitration under this Agreement will take
place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up
the ability to participate in a class action.
Notwithstanding the foregoing, nothing in this Agreement will preclude
either party from seeking equitable relief in a court having jurisdiction. The arbitration will be conducted in
accordance with the Rules for Non-Administered Arbitration of the International Institute for Conflict Prevention
and Resolution then in effect (“CPR Rules”). The arbitration will be conducted before a panel of three arbitrators
selected using the screened process provided for in the CPR Rules. The arbitration panel will have no power to award
non-monetary or equitable relief of any sort, or to award damages inconsistent with this Agreement (including
Section 14). Judgment on any arbitration award may be entered in any court having jurisdiction. All aspects of the
arbitration will be treated as confidential. You acknowledge and agree that any demand for arbitration must be
issued within one (1) year from the date that you became aware or should reasonably have become aware of the facts
that give rise to QOMPLX’s alleged liability and in any event no later than two (2) years after the cause of action
accrued.
17. Information or Complaints. If you have a question or complaint regarding the Solution, please
send an
e-mail to legal@qomplx.com. You may also contact us by writing to QOMPLX,
11091 Sunset Hills Rd, Reston, VA 20190,
or by calling us at 703-995-4199. Please note that e-mail communications will not necessarily be secure;
accordingly, you should not include credit card information or other sensitive information in your e-mail
correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer
Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834,
or by telephone at (916) 445-1254 or (800) 952-5210.
18. Trade Control Laws. The Solution may be subject to
applicable export control laws and economic sanctions, including those of the United States and other relevant
jurisdictions (“Trade Control Laws”). You agree to comply with all applicable Trade Control Laws and you represent,
warrant, and covenant as follows: (a) you will not use the Solution except as authorized by applicable Trade Control
Laws; (b) you are not located or ordinarily resident in any country subject to comprehensive U.S. economic sanctions
(currently, Cuba, Iran, North Korea, Sudan, Syria, and Crimea (region of Ukraine) (“Sanctioned Countries”)); (c) you
will not access or otherwise use the Solution from or on behalf of any Sanctioned Country; (d) you are not and are
not acting on behalf of a person or entity on any U.S. Government or other applicable restricted party lists; (e)
you will not use the Solution for any end-uses restricted by the U.S. Government; and (f) you will not use the
Solution to store or transfer any data subject to the International Traffic in Arms Regulations or subject to the
Export Administration Regulations and controlled at a level other than EAR99/AT.
19. Miscellaneous. This Agreement
does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency, or
franchisor-franchisee relationship between you and QOMPLX. If any provision of this Agreement is found to be
unlawful, void, or for any reason unenforceable, that provision will be deemed severable from this Agreement and
will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or
sublicense any or all of your rights or obligations under this Agreement without our express prior written consent.
We may assign, transfer, or sublicense any or all of our rights or obligations under this Agreement without
restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver
of any preceding or subsequent breach or default. Any heading, caption, or section title contained herein is for
convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will
have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the
term “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without
limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between
you and QOMPLX relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or
oral agreements or understandings between you and QOMPLX relating to such subject matter. Notices to you (including
notices of changes to this Agreement) may be made via posting through the Solution or by e-mail (including in each
case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given
in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this
Agreement to the same extent and subject to the same conditions as other business documents and records originally
generated and maintained in printed form. QOMPLX will not be responsible for any failure to fulfill any obligation
due to any cause beyond its reasonable control, including but not limited to storms, earthquakes, and other acts of
God, acts of governments, riots, uprisings, sabotage, and your own negligent acts and omissions.