Terms of Service
This Terms of Service (this “Terms of Service”) is agreed to between Qwinix Technologies Inc., and its affiliates and subsidiaries (collectively, “Qwinix”) and you, or if you represent an entity or other organization, that entity or organization, (in either case, “You”). Qwinix offers end users (“Users”) the ability to access information, data, and other content (“Content”), as well as cloud managed technology solutions, design thinking, data, and analytics related services (the “Services”) described on the Qwinix platform (the “Platform”). You may access the Platform through the website located at https://www.qwinix.io/ or other websites operated by Qwinix (each, a “Website”). This Terms of Service applies to the Platform and the Content and Services available through the Platform, regardless of the Website through which You access or use the Platform, Content, or Services.
PLEASE CAREFULLY READ THIS TERMS OF SERVICE. BY ACCESSING OR USING THE PLATFORM, CONTENT, OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS TERMS OF SERVICE, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS TERMS OF SERVICE. IF YOU DO NOT AGREE TO THIS TERMS OF SERVICE, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, QWINIX IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM, CONTENT, OR SERVICES AND YOU MUST NOT ACCESS OR USE THE PLATFORM, CONTENT, OR SERVICES. IF YOU ACCESS OR USE THE PLATFORM, CONTENT, OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS TERMS OF SERVICE.
1. Definitions. Terms used in this Terms of Service have the definitions given in this Terms of Service or, if not defined in this Terms of Service, have their plain English meaning as commonly interpreted in the United States.
2. Term. This Terms of Service is entered into as of the earlier of the date You first accessed the Website or used the Platform, Content, or Services (the “Effective Date”) and will continue until terminated as set forth herein.
3. Modifications. Qwinix reserves the right, at any time, to modify the Platform, Content, or Services, with or without notice to You, by making those modifications available on the Platform. Qwinix also reserves the right, at any time, to modify this Terms of Service. Qwinix will inform You of the presence of any changes to this Terms of Service by posting those changes on the Platform or by providing You with notice through the Platform. Any modifications will be effective immediately upon posting on the Platform or delivery of such notice through the Platform. You may terminate this Terms of Service as set forth below if You object to any such modifications. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Platform, Content, or Services following such notice period.
4. Eligibility. The Platform, Content, and Services are intended for use by individuals 13 years of age and older. If You are a parent or guardian of a child under 13, then You may allow Your child to access the Platform, Content, or Services only under Your direct supervision. You will not allow Your child to access the Platform, Content, or Services other than under Your direct supervision and You will be solely responsible for all access to and use of the Platform, Content, or Services by Your child. If You are 13 or older but younger than 18, then You may access and use the Platform, Content, and Services only if Your parent or guardian accepts this Terms and Service on Your behalf. If You are a parent or guardian agreeing to this Terms of Service for the benefit of a child age 13 or older but under 18, then You agree You will be solely responsible for all access to and use of the Platform, Content, or Services.
a. To the Platform. Subject to Your compliance with this Terms of Service, Qwinix will permit You to access and use the Platform, Content, and Services solely for lawful purposes and only in accordance with this Terms of Service and any other agreement You agree to with Qwinix before being given access to any specific aspects of the Platform. Any additional agreement is in addition to this Terms of Service and will govern Your use of the portions of the Platform to which the additional agreement applies in the event of a conflict between the terms of this Terms of Service and the additional agreement. You are solely responsible for obtaining and maintaining all equipment, facilities, and connectivity required to access or use the Platform, in each case as necessary to meet Your operational and business requirements based on Your particular circumstances.
b. To Content. You may be provided with access to a variety of Content through the Platform, including, text, audio, video, photographs, maps, illustrations, event announcements, product and service decryptions, graphics, and other data, information, and media. Unless otherwise noted on the Platform, all Content available through the Platform is owned by Qwinix and Qwinix’s other third party providers. All Content is provided for informational purposes only and You are solely responsible for verifying the accuracy, completeness, and applicability of all Content and for Your use of any Content. Subject to Your compliance with this Agreement, You may access the Content solely for Your own personal purposes in connection with Your use of the Platform. You will not, and will not permit any third party to: (i) alter, modify, reproduce, or create derivative works of any Content; (ii) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Content; or (iii) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Content. Certain Content may include or be based on data, information or content from third party providers (“Third Party Content”). Qwinix has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Third Party Content provided through the Platform. Without limiting the foregoing, Qwinix will not be held liable to You or any other third party for any Third Party Content under a Federal Law the Communications Decency Act or CDA, 47 U.S.C. § 230. Except as set forth in this Agreement, You are granted no licenses or rights in or to any Content, or any IPR (as defined below) therein or related thereto. If You would like to use the Content in a manner not permitted by this Agreement, please contact Qwinix.
c. To Third Party Services. The Platform may provide You with the choice to access services developed, provided, or maintained by other third party service providers (“Third Party Content”). In addition to the terms of this Agreement, Your access to and use of any Third Party Services is also subject to any other agreement You may agree to before being given access to the Third Party Services (each, a “Third Party Service Agreement”). The terms of any Third Party Service Agreement (which may include payment of additional fees) will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement but will not apply to any other Services You may access through Qwinix. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement.
6. Termination. This Terms of Service may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under this Terms of Service. Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to You under this Terms of Service will terminate; and (b) You will immediately cease all use of and access to the Platform and all Content and Services (including, without limitation, all Content You obtained prior to termination). Sections 1 (“Definitions”), 6 (“Termination”), 8 (“Platform Technology”), 9 (“Ownership”), 10 (“Representations and Warranties), 11 (“No Warranties; Disclaimers”), 12 (“Indemnity”), 13 (“Limitation on Liability”), 14 (“Release”), 15 (“Data Privacy”), 16 (“Feedback”) , 17 (“Disputes”), 18 (“Governing Law and Venue”), 19 (“Notices”), 20 (“Linked Sites”), and 21 (“Additional Terms”) will survive any expiration or termination of this Agreement.
7. Suspension. Without limiting Qwinix’s right to terminate this Terms of Service, Qwinix may also suspend Your access to the Platform or any Content or Services, with or without notice to You, upon any actual, threatened or suspected breach of this Terms of Service or applicable law or upon any other conduct deemed by Qwinix, in its sole discretion, to be inappropriate or detrimental to the Platform, Services, Qwinix, or any other User or third party.
8. Platform Technology.The Platform, and the databases, software, hardware and other technology used by or on behalf of Qwinix to operate the Platform, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), constitute valuable trade secrets of Qwinix. You will not, and will not permit any third party to: (a) access or attempt to access the Technology except as expressly provided in this Terms of Service; (b) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (c) use automated scripts to collect information from or otherwise interact with the Technology; (d) alter, modify, reproduce, create derivative works of the Technology; (e) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third party; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (g) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (h) monitor the availability, performance or functionality of the Technology; or (i) interfere with the operation or hosting of the Technology.
9. Ownership. Qwinix retains all right, title, and interest, including, without limitation, all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights (“IPR”), in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your ability to access the Platform, Content, and Services under this Agreement. The Qwinix name, logo, and all product and service names associated with the Platform, Content, and Services are trademarks of Qwinix and its licensors and third party providers and You are granted no right or license to use them.
10. Representations and Warranties.
a. Mutual. Each party hereby represents and warrants to the other party that: (i) it has the legal right and authority to enter into this Terms of Service; (ii) this Terms of Service forms a binding legal obligation on behalf of such party; and (iii) it has the legal right and authority to perform its obligations under this Terms of Service and to grant the rights and licenses described in this Terms of Service.
b. Compliance with Laws. You acknowledge that the Platform is a general purpose online service and is not specifically designed to facilitate compliance with any specific law. You represent and warrant to Qwinix that Your use of and access to the Platform, including any Content or Services, will comply with all applicable laws, rules, or regulations (“Laws”) and will not cause Qwinix itself or any other third party to violate any applicable Laws. Qwinix is not responsible for notifying You of any such Laws, enabling Your compliance with any such Laws, or for Your failure to comply.
11. No Warranties; Disclaimer. THE PLATFORM, CONTENT, AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” QWINIX, ITS LICENSORS, AND PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF THE PLATFORM OR ANY CONTENT OR SERVICES AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE CONTENT OR OTHER DATA, INFORMATION, OR THIRD PARTY CONTENT THAT MAY BE PROVIDED THROUGH THE PLATFORM. QWINIX AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, CONTENT, SERVICES AND OTHER SUBJECT MATTER OF THIS TERMS OF SERVICE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QWINIX, ITS EMPLOYEES, PROVIDERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.
12. Indemnity. You hereby agree to indemnify, defend, and hold harmless Qwinix and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (a) Your access to or use of the Platform, Content, or Services; (b) Your collection, use, and disclosure of any Content; (c) Your violation of applicable Laws; and (d) Your breach of any representation, warranty, or other provision of this Terms of Service. Qwinix will use reasonable efforts to provide You with notice of any such claim or allegation, and Qwinix will have the right to participate in the defense of any such claim at its expense.
13. Limitation of Liability. QWINIX WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, CONTENT, OR SERVICES, EVEN IF QWINIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT OR SERVICES. QWINIX’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS TERMS OF SERVICE AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS TERMS OF SERVICE OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100. YOU AGREE THAT QWINIX WOULD NOT ENTER INTO THIS TERMS OF SERVICE WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, QWINIX’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. Release. You hereby release and forever discharge Qwinix and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, the Platform, Services, or Content.
16. Feedback. If You provide Qwinix any feedback or suggestions regarding the Platform, Services, or Content (“Feedback”), You hereby assign to Qwinix all rights in the Feedback and agree that Qwinix shall have the right to use such Feedback and related information in any manner it deems appropriate without a duty of accounting to You. Qwinix will treat any Feedback You provide to Qwinix as non-confidential and non-proprietary. You agree that You will not submit to Qwinix any information or ideas that You consider to be confidential or proprietary.
17. Disputes. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Terms of Service, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Terms of Service and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Terms of Service (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within five days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Terms of Service delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Qwinix in Denver, Colorado, U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
18. Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Terms of Service, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado without regard to the conflict of laws provisions thereof. Subject to Section titled Disputes, each party will bring any action or proceeding arising from or relating to this Terms of Service exclusively in a federal or state court in Denver, Colorado, U.S.A., and each party irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts.
19. Notices. Unless otherwise specified in this Terms of Service, any notices required or allowed under this Terms of Service will be provided to Qwinix by postal mail to the address for Qwinix listed on the Platform. Qwinix may provide You with any notices required or allowed under this Terms of Service by sending You an email to any email address You provide to Qwinix in connection with Your use of the Platform, provided that in the case of any notice applicable both to You and other Users of the Platform, Qwinix may instead provide such notice by posting on the Platform. Notices provided to Qwinix will be deemed given when actually received by Qwinix. Notice provided to You will be deemed given immediately after posting to the Platform or sending via e-mail, unless (as to email) the sending party is notified that the email address is invalid.
20. Linked Sites. The Platform and Services may contain links to third party sites or content that are not under the control of Qwinix. If You access a third party site or content from the Platform or Services, then You do so at Your own risk and Qwinix is not responsible for any content on any linked site or content. You may establish a link to the Website, provided that the link does not state or imply any sponsorship or endorsement of Your site by Qwinix or any group or individual affiliated with Qwinix. You may not use on Your site any Content or marks appearing on the Website or Platform in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Platform without Qwinix’s prior written consent.
21. Additional Terms. Unless otherwise amended as provided herein, this Terms of Service will exclusively govern Your access to and use of the Platform, Content, and Services, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Platform, Content, and Services. Except as expressly set forth in this Agreement, this Terms of Service may be amended or modified only by a writing signed by both parties. All waivers by Qwinix under this Terms of Service must be in writing or later acknowledged by Qwinix in writing. Any waiver or failure by Qwinix to enforce any provision of this Terms of Service on one occasion will not be deemed a waiver by Qwinix of any other provision or of such provision on any other occasion. If any provision of this Terms of Service is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Terms of Service will be entitled to receive its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Terms of Service nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Qwinix. Any assignment in violation of the foregoing will be null and void. Qwinix may assign this Terms of Service to any party that assumes Qwinix’s obligations hereunder. The parties hereto are independent parties, not agents, employees of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. Any reference herein to “including” will mean “including, without limitation.” Upon request from Qwinix, You agree to provide Qwinix with such documentation or records with respect to Your activities under this Terms of Service as may be reasonably requested for Qwinix to verify Your compliance with all applicable Laws and the terms of this Terms of Service.