End User License Agreement
Quiet Pub Ltd. / Quetzal POS
303 Bagot Street, suite 304,
Kingston, Ontario Canada
End User License Agreement
This End User License Agreement (this "Agreement") is by and between Quiet Pub Ltd. an Ontario Corporation d/b/a Quetzal (Quetzal) the sole provider of Quetzal Point of Sale services ("Quetzal"), the iOS "Quetzal Shoes and Apparel POS" app and the company (or other entity) acknowledging this Agreement ("Customer").
1. Provision of Product.
(a) Quetzal will provide Customer access to the Internet Point of Sale product (the "Product") which will permit the processing, retrieval, and transmission of transaction data submitted by Customer (the "Customer Data") pursuant to the terms of this Agreement. Quetzal may change Product features and functionality from time to time at its sole discretion, as well as the terms and conditions of this Agreement. Notice of such changes will be posted on the support-center.html Web site page (the "Support Web Site"), which Customer will review periodically.
(b) Customer is responsible for its own compliance with this Agreement, including without limitation the compliance of its employees, officers, agents, and any third party Customer invites to participate in the Service.
(a) Beyond any trial period, License fees are due and payable to Quetzal for the Customer's use of the Product as set out on the Quetzal website www.quetzalpos.com. The prices may be changed by Quetzal from time to time at its sole discretion. License fees may be paid via a Quetzal licensed Reseller or in person with Quetzal sales staff.
(b) All payments will be in U.S. or Canadian dollars.
(c) Customers may select credit card payment options, pursuant to which Quetzal will charge fees directly to a Customer's credit card, when such option is made available by Quetzal and pursuant to such terms and conditions as Quetzal may post on the Web Site from time to time.
(d) Customer agrees to pay all state and local sales, use, property, or other taxes (collectively, "Chargeable Taxes"), except for taxes on Quetzal net income which may be assessed against Quetzal with respect to this Agreement. Quetzal may include Chargeable Taxes in its invoices, in which event Customer will pay to Quetzal the taxes so invoiced.
3. Limitations on Use of Service and Service Software.
(a) As used herein, "Software" refers to any software incorporated into the Product. Customer will not, and will not permit, assist, or allow others to, reverse engineer, decompile, disassemble, re-engineer, or otherwise discover, recreate, or attempt to discover or recreate the Software or its source code. Customer will not modify or attempt to modify the Software or sublicense or charge others to use or access the Software or the Product. Customer will not use the Software or the Product in any way not expressly authorized by this Agreement.
(b) Customer acknowledges that the Product is not intended for permanent storage and agrees not to use the Product for archiving or back-up purposes. Customer will not store "mission critical" data on the Product, including without limitation data pertaining to power generation, military or national security, or any function to sustain or rescue the health or well-being of any person.
(c) From time to time, Quetzal may add new features to the Product that are described as "beta" ("Beta Features"). Customer acknowledges that Beta Features may be untested, non-functional, and/or partly functional features of the Product. If Customer elects to use a Beta Feature, it does so at its own risk. Notwithstanding the provisions of the first sentence of Section 5(a), Quetzal does not warrant that the Beta Features will be provided with due care. Customer will back-up all data it adds to the Beta Features and will not rely upon the functionality of the Beta Features for any purpose whatsoever. Except as specifically provided in this Section 3(c), the Beta Features will be considered part of the Service and all provisions of this Agreement relating to the Service will apply to the Beta Features. The aforementioned in no way constitutes a prejudice in contradiction of clause 5 below.
4. Security, Privacy, and Access.
(a) Quetzal will exercise reasonable care to prevent any unauthorized person or entity from gaining access to Customer Data. Each party will promptly notify the other of any unauthorized access to or use of Customer Data or passwords. The parties will use reasonable efforts to take remedial measures to address any such unauthorized access. Quetzal will not be liable for any damages incurred by Customer arising out of or related to use of the Product, including without limitation in connection with any unauthorized access to or disclosure of Customer Data, resulting from the actions of Customer, any third party, or from the failure of electronic or other security measures.
(b) Quetzal has no obligation to monitor the Product. Quetzal has the right to monitor the Product and to disclose any information arising out of it, including without limitation Customer Data, as necessary to satisfy any law, regulation, or demand of government or of internal auditors or to protect Quetzal or its customers. Quetzal may remove or refuse to post any materials that it finds, at its sole discretion, to be offensive, undesirable, in violation of this Agreement, or otherwise unacceptable. However, Quetzal has no obligation to remove any such materials.
(c) Customer will not disclose any account passwords to any third party not authorized to use the Product.
(d) Customer will not use the Product to transmit or store any data that may be considered obscene or pornographic, that contains defamatory material, or that violates federal, state, provincial, or local law.
e) Quetzal maintains proprietorship of all data stored in the Quetzal system and may use the data, only in aggregation with other Customer data for any purpose.
5. Limited Warranty; Limitation of Liability.
(a) Quetzal warrants that the Service will be provided with due care. EXCEPT FOR THE FOREGOING, Quetzal DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCT. Furthermore, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, WILL Quetzal BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE USE OR INABILITY TO USE THE SERVICE.
Quetzal IN NO WAY WARRANTS OR GUARANTEES THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DATA SUBMITTED OR HELD IN STORAGE ON OR THROUGH ITS SYSTEMS ASSOCIATED WITH THE INTERNET WILL BE SECURE FROM UNAUTHORIZED ACCESS. FURTHER, EACH PARTY ACKNOWLEDGES AND AGREES THAT THE INTERNET IS NOT ESTABLISHED OR MAINTAINED BY THE OTHER PARTY, THAT NEITHER PARTY HAS CONTROL OVER THE INTERNET, AND THAT NEITHER PARTY IS LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE USE OF THE SOFTWARE, OR THE PERFORMANCE OF OTHER ONLINE FUNCTIONS. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION THAT IS NOT EXPRESSLY SET OUT HEREIN.
In no event will Quetzal's total liability for damages, losses, or causes of action, whether in contract or tort, including without limitation negligence, either jointly or severally, exceed the aggregate dollar amount paid by Customer to Quetzal in the twelve (12) months prior to the claimed injury or damage.
(b) Quetzal is not liable for the accuracy, truthfulness, or validity of any data entered by Customer or provided through the Product. Quetzal is not liable for the loss of any Customer Data.
(c) Customer's sole and exclusive remedy, if it is dissatisfied with the Product or with any terms, conditions, rules, policies, guidelines, or practices of Quetzal is to discontinue using the Product.
Customer will indemnify and hold harmless Quetzal and its affiliates, employees, officers, directors, agents, licensors, successors and assigns from all damages and liability, including without limitation reasonable attorneys' fees, incurred as a result of:
(a) Customer's violation of its obligations under this Agreement, (b) The negligent or willful acts of Customer, or
(c) The violation by Customer of Quetzal or any third party's rights, including without limitation privacy rights, other property rights, trade secret, proprietary information, trademark, copyright, or patent rights, and claims for libel, slander, or unfair trade practices in connection with the use or operation of the Service. Customer's obligation to indemnify will survive the expiration or termination of this Agreement by either party for any reason.
7. Termination and Cessation of Service.
(a) Either party may terminate this agreement at any time. The following obligations will survive the termination of the Agreement for any reason: (i) indemnification obligations set forth in Section 6 above; (ii) obligations to make payments of amounts that become due under this Agreement before termination; and (iii) any other provision hereof where the context of such provision indicates an intent that it will survive the term or termination of this Agreement.
(b) Quetzal may deny Customer access to all or part of the Product without notice if Quetzal believes, in its sole discretion, that Customer may have violated any of the terms of this Agreement.
8. Interruption of Service.
(a) Quetzal WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO INTERRUPTION OF, OR DEFECTS IN TRANSMISSION OF, THE SERVICE, including without limitation interruptions or defects due to inability to access the Internet or any part thereof, equipment modifications, upgrades, relocations, or repairs. No reduction of payments will be made in the case of temporary interruption of or defects in transmission of the Service.
(b) Quetzal will not be liable for interruption of or delays in transmission of the Service caused by acts of God, fire, water, riots, acts of Government, acts or omissions of Internet backbone providers, or any other causes.
(a) This Agreement constitutes the entire Agreement between Quetzal and Customer regarding the subject matter hereof and expressly supersedes any prior or contemporaneous written or oral agreements between the parties regarding the subject matter hereof, including without limitation any offer, purchase order, or other similar instrument in writing. This Agreement may not be amended, altered, or changed except by a written agreement signed by the duly authorized representatives of both parties.
(b) In the event that any provision of this Agreement is held to be unenforceable, such provision will be construed as nearly as possible to reflect it original intent and the remainder of this Agreement will remain in full force and effect.
(c) Customer's rights in this Agreement are personal and are not assignable. Quetzal may assign its rights and obligations under this Agreement to third parties.
d) This Agreement is to be construed in accordance with and governed by the internal laws of the Province of Ontario 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 Province of Ontario to the rights and duties of the parties. The parties agree that any claim, controversy, or dispute arising out of or relating to this Agreement will be settled by final and binding arbitration to be conducted in Kingston Ontario in accordance with the commercial arbitration rules in Ontario. The decision of the arbitrator(s) will be binding; provided that Quetzal may bring an action in a court of law (i) involving allegations of personal injury to a third party, or (ii) for injunctive or other equitable or extraordinary relief.
(e) The remedies provided in this Agreement and at law or in equity are cumulative and not exclusive. The failure by either party to exercise any right or remedy under this Agreement or otherwise available at law or in equity will not be deemed a waiver of any subsequent right or remedy.
(f) No person or entity who is not a party to this Agreement will derive any rights whatsoever hereunder as a third party beneficiary of this Agreement.
The parties acknowledge that they have read the terms and conditions of this Agreement and hereby agree to be bound thereby. This Agreement will become effective upon Customer's acceptance by electronic acknowledgment on the Web Site or in the Product. Furthermore, each and every subsequent usage of the Product will constitute a tacit acknowledgement and acceptance of this Agreement.