These terms and conditions are entered into by and between you and QuadioMedia, Inc. and its affiliates (“Quadio”, “we”, “our”, “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, "Terms of Service"), govern your access to and use of Quadio’s websites, systems, software applications, and services (collectively, the “Platform”), or accessing any music, photos, videos or other content or material that is made available through the Platform (the “Content”), whether as a guest or a registered user.
The Platform is offered and available to users who are 13 years of age or older, and reside in the United States or any of its territories or possessions. By using our Platform, you represent and warrant that you are of legal age to form a binding contract with Quadio and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Platform.
These Terms of Service are not intended and are not to be construed to amend, modify, or supersede any other terms that may be explicitly agreed to in writing between you and Quadio in connection with any products and services offered by Quadio.
Modifications of these Terms of Service
Quadio reserves the right to revise and update these Terms of Service at any time and from time to time without specific notice to you. The latest Terms of Service will be posted on this website and all changes will be effective immediately when we post them.
Your continued use of the Platform following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. If you do not wish to continue using the Platform under the new version of the Terms of Service, you may terminate your Quadio account by contacting us through our website contact form or by deleting your account within the platform. Notwithstanding the preceding sentences of this paragraph, no revisions to the Terms of Service will apply to any dispute between you and us that arose prior to the date of such changes.
To use the Platform, you must register, or have previously registered, a Quadio account (an “Account”). Accounts are currently restricted to students enrolled at select U.S. colleges, as determined by Quadio, and as may be amended from time to time. In order to create an Account, you must (1) be a college student actively enrolled in (or an alumnus of) at least one course at a college geographically located in one of the 50 United States and preapproved by Quadio, (2) be able to provide proof of enrollment (or graduation) upon request and (3) have a valid e-mail address that contains the domain suffix .edu. We may accept or refuse Account registration at our sole discretion. We may ask you to furnish documentation supporting your eligibility. If you do not provide documentation indicating that you meet the eligibility requirements above, we may terminate your Account. You may not transfer or assign your Account. You may not use your student e-mail address for more than one Account. You may not register for a new Account more than once.
Creation and use of Accounts are subject to the following terms and conditions:
+ When you create or update an Account, you must provide Quadio with accurate and up-to-date information that is personal to you, including, but not limited to, your name and school email address.
Quadio shall also have the right to obtain non-personal data related to your connection to the Platform.
+ You must select a unique password for your Account. You may not use your real name as the password for the Account, and you cannot share your Account credentials with anyone, unless these Terms of Service allow it.
+ You must maintain the confidentiality of your password, as you are responsible for all uses of your Account, including any purchases, whether or not authorized by you. If you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of your Account password, you must immediately notify Quadio at firstname.lastname@example.org.
You agree to pay all fees and applicable taxes incurred by you or anyone using your Account. If you choose a recurring subscription for any Quadio products or services, you acknowledge that payments may be processed automatically (e.g., charged to your credit card) until you cancel your subscription or your Account. Quadio may revise the pricing for the goods and services offered through the Platform at any time. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, YOU ACKNOWLEDGE THAT QUADIO IS NOT REQUIRED TO REFUND AMOUNTS YOU PAY TO QUADIO FOR USE OF THE PLATFORM, OR FOR PURCHASES MADE THROUGH YOUR ACCOUNT ON THE PLATFORM, FOR ANY REASON.
The Platform and the Content are the property of Quadio or Quadio’s licensors. We grant you limited, non-exclusive, revocable permission to make use of the Platform, and limited, non-exclusive, revocable permission to make personal, non-commercial use of the Content (collectively, “Access”). This Access shall remain in effect until and unless terminated by you or Quadio. You promise and agree that you are using the Platform and Content for your own personal, non-commercial use and that you will not redistribute or transfer the Platform or the Content.
You will retain all ownership rights to any of your original content that you upload to Quadio. If you create an Account and choose to upload your own content (“User Content”) to Quadio, we grant you a limited, non-exclusive, revocable license to make personal, non-commercial, entertainment use of the Platform and to use the Platform for commercial use to promote User Content and personal brand (the “License”). This License shall remain in effect until and unless terminated by you or Quadio.
The Quadio software applications and the Content are not sold or transferred to you, and Quadio and its licensors retain ownership of all copies of the Quadio software applications and Content even after installation on your personal computers, mobile handsets, tablets, wearable devices, speakers and/or other devices (“Devices”).
All Quadio trademarks, service marks, trade names, logos, domain names, and any other features of the Quadio brand (“Quadio Brand Features”) are the sole property of Quadio or its licensors. These Terms of Service do not grant you any rights to use any Quadio Brand Features whether for commercial or non-commercial use.
You agree to abide by our user guidelines and not to use the Platform, the Content, or any part thereof in any manner not expressly permitted by these Terms of Service. Except for the rights expressly granted to you in these Terms of Service, Quadio grants no right, title, or interest to you in the Platform or Content.
Third party software (for example, open source software libraries) included in the Platform are made available to you under the relevant third party software library’s license terms, and such terms will be provided to you upon request.
Quadio may suspend or revoke your license to use the Platform or Content, or parts, components and/or single features thereof, if you violate, or assist others in violating, the license limitations set forth below. You agree that you will not, in whole or in part or under any circumstances, do the following:
+ Create Derivative Works. You shall not copy or reproduce (except as expressly authorized herein), translate, reverse engineer, derive source code from, modify, disassemble, decompile, or create derivative works based on or related to the Platform or the Content.
+ Use the Platform for Unauthorized Commercial Uses. You shall not exploit, in its entirety or individual components, the Platform for any purpose not expressly authorized by Quadio, including, without limitation: (i) gathering Quadio features, reports or resources for sale outside of the Platform; (ii) provide or make available any features or functionality of the Platform to any person or entity, whether or not over a network and whether or not on a hosted basis.
+ Transfer any Platform Components to a Third Party. You shall not attempt to sell, sublicense, rent, lease, grant a security interest in or otherwise transfer any copy of the Platform, Content or component thereof, or your rights to the Platform or Content to any other party in any way not expressly authorized herein.
+ Engage in Disruption or Harassment of Third Parties. You shall not engage in any conduct intended to disrupt or diminish the experience for other Platform users, or disrupt operation of the Platform in any way, including (i) disrupting or assisting in the disruption of any computer, console or mobile device used to support the Platform or Content; or (ii) harassment, abusive behavior or chat, conduct intended to unreasonably undermine or disrupt the experiences of others, and/or any other activity which violates Quadio’s policies.
+ Break the law. You shall not use the Platform or Content to violate any applicable law or regulation.
Rights to User Content
As an Account holder you may submit User Content to the Platform, including sound recordings, pictures, videos, text, messages, information, comments and/or other types of content. You understand that Quadio does not guarantee any confidentiality with respect to any User Content you submit.
You shall be solely responsible for your own User Content and the consequences of submitting and publishing your User Content on the Platform. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User Content you submit; and you license to Quadio all patent, trademark, trade secret, copyright or other proprietary rights in and to such User Content for publication on the Platform pursuant to these Terms of Service.
For clarity, you retain all of your ownership rights in your User Content. Further, Quadio will not share your User Content with third parties outside of the Platform without first obtaining your explicit consent to do so. However, by submitting User Content to Quadio, Quadio requires the following license from you in order to operate the Platform and perform the services requested.
You hereby grant Quadio a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content in connection with the operation of the Platform and Quadio's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Platform (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Platform a non-exclusive license to access your User Content through the Platform for non-commercial purposes, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Platform and under these Terms of Service. The above licenses granted by you in sound recording User Content you submit to the Platform terminate within a commercially reasonable time after you remove or delete your sound recordings from the Platform. You understand and agree, however, that Quadio may retain, but not display, distribute, or perform, server copies of your sound recordings that have been removed or deleted.
You further agree that User Content you submit to the Platform will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Quadio all of the license rights granted herein. Where applicable and permitted under applicable law, you also agree to waive any “moral rights” (or the equivalent under applicable law), such as your right to be identified as the author of any User Content, and your right to object to derogatory treatment of such User Content. If such moral rights are not waivable, then you at least agree not to sue us for failure to identify you as the author of any User Content or for any use of your User Content on the Platform.
Quadio does not endorse any User Content submitted to the Platform by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and Quadio expressly disclaims any and all liability in connection with User Content. Quadio does not permit copyright infringing activities and infringement of intellectual property rights on the Platform, and Quadio will remove all Content if properly notified that such Content infringes on another's intellectual property rights. Quadio reserves the right to remove User Content without prior notice.
You promise that, with respect to any User Content you post on the Platform, (i) such User Content, or its use by Quadio as contemplated by these Terms of Service, does not violate the publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by Quadio or any other artist, band, label, entity or individual without express written consent from such individual or entity, and (ii) no royalties or other fees will be payable by Quadio to any third party for the reproduction, distribution, public display, public performance, creation of derivative works, or other use or exploitation of such User Content.
Quadio may, but has no obligation to, monitor, review, or edit User Content. Because there is a risk to hosting user uploaded content, including User Content, Quadio reserves the right, in all cases, to remove or disable access to any User Content for any or no reason, including, but not limited to, User Content that, in Quadio’s sole discretion, violates these Terms of Service, the rights of any third party, poses a reputational risk to Quadio or any other person, or would cause Quadio to be in breach of any agreement to which Quadio is a party. Quadio may take these actions without prior notification to you or any third party and without any liability to you for such removal. However, Quadio does not obligate itself to remove any User Content except as required by law.
You are solely responsible for all User Content that you post, so please be careful about what you post. Don’t defame people on the Platform. As you would expect, Quadio is not responsible for User Content nor does it endorse any opinion contained in any User Content. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST QUADIO RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LAW, YOU WILL INDEMNIFY AND HOLD QUADIO HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) ARISING OUT OF SUCH CLAIM AND/OR YOUR BREACH OF THE REPRESENTATIONS SET FORTH IN THESE TERMS OF SERVICE.
Quadio respects intellectual property rights and expects you to do the same. The current ground rules for your use of the Platform are listed below, but these may be updated, or we may provide you with additional rules, from time to time. Please follow these rules and encourage other users to do the same.
The following is not permitted for any reason whatsoever:
+ copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Platform or the Content, or otherwise making any use of the Platform or the Content which is not expressly permitted under these Terms of Service or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Platform or the Content or any part of it;
+ using the Platform to import or copy any local files you do not have the legal right to import or copy in this way;
+ transferring copies of cached Content from an authorized Device to any other Device via any means;
+ reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the Platform, Content or any part thereof unless permitted by applicable law;
+ circumventing any technology used by Quadio, its licensors, or any third party to protect the Content or the Platform;
+ selling, renting, sub-licensing or leasing of any part of the Platform or the Content;
+ circumventing any territorial restrictions applied by Quadio or it licensors;
+ artificially increasing play count or otherwise manipulating the Platform by using a script or other automated process;
taking any action that imposes an unreasonable load on the Platform;
+ removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the Platform (including for the purpose of disguising or changing any indications of the ownership or source of any Content);
+ “crawling” the Platform or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from Quadio;
+ framing or linking to any of the materials or information available on the Platform;
+ deleting or altering any material Quadio or any other user makes available on the Platform; or
+ selling an Account or component thereof (such as followers, like, or playlists), or otherwise accepting any compensation, financial or otherwise, to influence the name of an account or playlist or the content included on an account or playlist.
Please respect Quadio, the owners of the Content, yourself, and other users of the Platform. Don’t engage in any activity, post any User Content, or register profile information associated with your Account, which is or includes material that:
+ would violate any agreement to which you are a party, such as, by way of example and not limitation, an exclusive recording agreement or publishing agreement;
+ promotes any product, good or service for which you receive consideration of any form without making all required disclosures pursuant to the Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising, as such Guides may be amended from time-to-time by the Federal Trade Commission;
+ is offensive, abusive, defamatory, pornographic, threatening, obscene, or advocates or incites violence;
+ is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of Quadio or a third party;
+ includes your password or purposely includes any other user’s password or purposely includes personal data of third parties or is intended to solicit such personal data;
+ includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Platform;
+ is intended to or does harass or bully other users;
+ impersonates or misrepresents your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;
uses automated means to artificially promote Content;
+ involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar;
+ involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by Quadio;
+ links to, references, or otherwise promotes commercial products or services, except as expressly authorized by Quadio;
+ exposes confidential or proprietary information of a third party or personal information about yourself that you do not wish broadcast to people around the world;
+ interferes with or in any way disrupts the Platform, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Platform or Quadio’s computer systems, network, usage rules, or any of Quadio’s security components, authentication measures or any other protection measures applicable to the Platform, the Content or any part thereof; or
+ conflicts with these Terms of Service, as determined by Quadio.
You agree that you will not assist or permit any person in engaging in any of the activities set forth in these User Guidelines. You acknowledge and agree that posting any such objectionable Content may result in immediate termination or suspension of your Quadio account.
Please be thoughtful about how you use the Platform and what you share, and especially how you interact with your fans on the Platform. The Platform includes social and interactive features, including the ability to post User Content, share content, and make certain information about you public. Remember that shared or publicly available information may be used and re-shared by other users on the Platform or across the web, and may live on in perpetuity once posted, so please use the Platform carefully. Quadio has no responsibility for your choices to post User Content on the Platform.
Beta Testing and Pre-Release Versions
Certain pre-release versions of Quadio products and services may be made available to you through the Platform for testing (a “Beta Test”).
During and after the Beta Test, you may be provided with an opportunity to give Quadio your comments, suggestions and impressions of the Platform by using tools to supply feedback and bug reports, internal websites and forums, and other methods. The Platform may also include a tool that will allow your computer, console or mobile device to forward system and driver information to Quadio in the event of a crash. This tool may collect data from your computer, console or mobile device related to the crash, and allow you to forward a report to Quadio via electronic mail.
You acknowledge that: (a) the Platform being Beta Tested is a work in progress and may contain bugs which may cause loss of data and/or damage to your computer, console or mobile device; (b) you have, or will, back-up your device prior to installation or use of the Beta Test Platform; (c) you have the resources necessary to easily reinstall the Beta Test’s Platform and restore any and all data that may be lost; (d) Quadio is not liable in any way for the loss of data or damage that is incurred during the Beta Test, including, but not limited to, interruptions of service, software or hardware failures, or loss of data or disruption of service; (e) Quadio may monitor and record any and all communications, electronic or otherwise, pertaining to the Beta Test; (f) Quadio may delete or modify the information (including any User Content) stored by the Platform being Beta Tested for any reason at any time during the duration of the Beta Test; and (g) you may not sell, transfer or commercially exploit access to a Beta Test, without Quadio’s express authorization.
Quadio can terminate a Beta Test at any time. When Quadio terminates a Beta Test, you must delete the pre-release version of the Platform that was the subject of the Beta Test. You agree and acknowledge that Quadio’s termination of the Beta Test shall not be grounds for any refunds of any kind. Your participation in a Beta Test shall not entitle you to a license to the Platform at the end of the Beta Test.
When participating in a Beta Test, the terms of this section shall supersede and govern over any other section of these Terms of Service which may be in conflict with the terms of this section.
Copyright Infringement Complaints
We do not undertake to review all Content before it is posted on the Platform, and cannot ensure prompt removal of objectionable Content after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any Platform user or third party. In the event we receive a disclosure request from an authorized party, we reserve the right to disclose user identities when required to do so by the law, including in response to a law enforcement request supported by a valid court order. You waive and hold harmless Quadio from any claims resulting from any action taken by Quadio during or as a result of its investigations and from any actions taken as a consequence of investigations by either Quadio or law enforcement authorities.
If you believe that any Content violates your copyright, please follow the procedure set forth by article 512(c) of the Digital Millennium Copyright Act (“DMCA”) and provide us a written takedown notice including the following information:
+ A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
+ Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
+ Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
+ Information reasonably sufficient for us to contact you, such as email, address, telephone number;
+ A statement that you a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
+ A statement that the information in the notification is accurate, and under penalty of perjury, that you is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The notice should be addressed via Certified Mail to Phillips Lytle LLP, Attn: Richard Honen, Omni Plaza, 30 South Pearl Street, Albany, NY 12207-3425, with a copy to Copyright Compliance Department, QuadioMedia, Inc., 134 N 4th Street, Brooklyn, NY 11249. If you fail to comply with all of the above requirements, your DMCA notice will not be valid. Please note that you may be liable for damages, including court costs and attorneys' fees, if you materially misrepresent that materials on the Platform are infringing a copyright.
If you believe in good faith that your own copyrighted material has been removed from the Platform as a result of mistake or misidentification, you may submit a written counter notification letter to our copyright agent pursuant to Sections 512(g)(2) and (3) of the DMCA. To be an effective counter notification under the DMCA, your written correspondence must include substantially the following:
+ Identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled;
+ A statement that you consent to the jurisdiction of the Federal District Courts in which your address is located or in the Commonwealth of Pennsylvania if your address is outside the United States;
+ A statement that you will accept service of process from the party that filed the notification of alleged copyright infringement or the party's agent;
+ Your name, address and telephone number;
+ A statement that you swear under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled, or that the material identified by the complaining party has been removed or disabled at the URL or web location and will no longer be shown or accessible; and
+ Your physical or electronic signature.
The counter notification notice should be addressed via Certified Mail to Phillips Lytle LLP, Attn: Richard Honen, Omni Plaza, 30 South Pearl Street, Albany, NY 12207-3425, with a copy to Copyright Compliance Department, QuadioMedia, Inc., 134 N 4th Street, Brooklyn, NY 11249. Upon receipt of a counter notice, Quadio’s Copyright Agent may send a copy of it to the original complaining party informing that party that Quadio may replace the removed content or cease disabling it. Unless the copyright owner files an action seeking a court order against Quadio, the removed content may be replaced or access to it restored by Quadio.
You acknowledge that if you fail to comply with all of the above requirements, your DMCA counter notification will not be valid. Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorneys' fees.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QUADIO AND ITS LICENSORS MAKE, AND YOU RECEIVE, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO THE CONTENT, PLATFORM MATERIALS OR QUADIO SERVICES. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE CONTENT, PLATFORM OR QUADIO MATERIALS OR SERVICES AND THEIR FEATURES OR FUNCTIONALITY OF THE PLATFORM OR ANY COMMUNICATION WITH YOU ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING, QUADIO DOES NOT WARRANT: (a) THAT THE OPERATION OR OUTPUT OF THE PLATFORM OR CONTENT WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE; (b) THAT ERRORS WILL BE CORRECTED BY QUADIO; OR (c) THAT QUADIO WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY. YOU MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. QUADIO DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
Limitations of Liability
IN NO EVENT WILL QUADIO OR ITS SUPPLIERS HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, USE, REVENUE, OR DATA; OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY). IN ADDITION, THE LIABILITY OF QUADIO AND ITS LICENSORS ARISING OUT OF OR RELATING TO THE CONTENT, PLATFORM OR ANY QUADIO SERVICES WILL NOT EXCEED FIVE HUNDRED DOLLARS ($500.00).
THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF QUADIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.
YOU SPECIFICALLY ACKNOWLEDGE THAT QUADIO SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Platform is controlled and offered by Quadio from its facilities in the United States of America. Quadio makes no representations that the Platform is appropriate or available for use in other locations. Those who access or use the Platform from other jurisdictions do so at their own volition and are responsible for compliance with local law.
You hereby agree to defend and indemnify Quadio, its parent, subsidiaries, and affiliates against and from any third-party claims, liabilities, losses, injuries, damages, costs or expenses (including but not limited to attorney's fees) incurred by Quadio arising out of or from your use of the Content, Platform, Account(s), or any specific services or features associated therewith, including but not limited to (i) your violation of these Terms of Service (ii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your User Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Platform.
Term and Termination
These Terms of Service are effective upon your creation of an Account, and shall remain in effect until it is terminated or superseded by a new agreement, or, if the foregoing event does not occur, as long as you continue using the Platform. Neither the Platform nor Quadio’s agreement to provide access to the Platform shall be considered a rental or lease of time on the capacity of Quadio’s servers or other technology.
You are entitled to terminate these Terms of Service and your Account at any time by notifying Quadio by email at email@example.com. Quadio reserves the right to terminate your Account at any time for any reason, or for no reason, with or without notice to you. In case of minor violations of these Terms of Service, Quadio may provide you with a prior warning and/or suspend your use of the Account due to your non-compliance prior to terminating these Terms of Service or modifying or deleting an Account.
In the event of a termination for your violation of these Terms of Service, you agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid on your Account prior to such termination.
Apple Device Terms
This section applies to users that use the Platform through an application on an Apple device (e.g., iPhone, iPad, iPod Touch) (any such device, an “Apple Device”); this section does not apply to users that do not use the Platform on an Apple Device. The parties acknowledge that these Terms of Service are concluded solely between you and Quadio, and not with Apple, and Apple is not responsible for the Platform and the content thereof. Any support that may be offered by Quadio in connection with the Platform is solely the responsibility of Quadio and it is acknowledged by the parties that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Platform. The parties acknowledge that Apple has no obligation to furnish any warranty with respect to the Platform. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Platform. The parties acknowledge that Apple is not responsible for addressing product claims. Apple is not responsible for addressing any claims of any end-user or any third party relating to the Platform or the end-user’s possession and/or use of that Platform, including, but not limited to: (i) product liability claims; (ii) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. The parties acknowledge that, in the event of any third party claim that the Platform or your possession and use of the Platform infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service, and that, upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third party beneficiary thereof.
Governing Law and Disputes
Without regard to its conflict of law rules, these Terms of Service shall be governed by and construed in accordance with the laws of the State of New York and applicable federal laws of the Unites States. In the event of any controversy or claim arising out of or relating to these Terms (“Dispute”), the parties shall first consult and negotiate with each other, directly or through their representatives, and, recognizing their mutual interests, attempt to reach a satisfactory resolution of the Dispute. If the parties do not resolve the Dispute to their mutual satisfaction within sixty (60) calendar days, then upon written notice by either party to the other, any unresolved Dispute shall be submitted to the American Arbitration Association (“AAA”) for final and binding arbitration under the applicable commercial rules, unless otherwise agreed by the parties, in writing. The arbitration shall be held before a single arbitrator agreed upon by the parties or, in the event the parties do not agree, appointed by the applicable arbitral body. All AAA arbitration proceedings shall be held in Brooklyn, New York, unless otherwise agreed by the parties and arbitrator.
Without regard to the forum, any remedy and any award against Quadio and all of its parents, subsidiaries, affiliates, assigns, successors shall be limited to actual damages incurred and you shall not be entitled to any award or recovery for consequential, incidental, punitive, or exemplary damages.
Arbitration of a Dispute is mandatory, except as stated otherwise in these Terms of Service. Any lawsuit brought by you involving a Dispute that is not subject to arbitration, shall be resolved individually without resort to any form of class action litigation. Notwithstanding anything in these Terms of Service, you shall retain the right to seek relief in a small claims court for any Dispute within the scope of its such court’s jurisdiction.
YOU AND QUADIO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The Platform may not be used, re-exported, downloaded or otherwise exported into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. Quadio may assign these Terms of Service, in whole or in part, to any person or entity at any time with or without your consent. You may not assign these Terms of Service without Quadio’s prior written consent. Your assignment of these Terms of Service without Quadio’s prior written consent shall be void. Quadio’s failure to enforce a provision of these Terms of Service shall not be construed as a (1) waiver of such provision, or (2) diminishment of any right to enforce such provisions. Further, Quadio may choose to waive enforcement of a provision of these Terms of Service in a particular instance; however, you are still obligated to comply with that waived provision in the future. Quadio shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Quadio, such as natural disasters, unforeseen intrusions into Quadio’s cyberspace, war, terrorism, riots, embargoes, acts of civil or military authorities, acts of God, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials. If any part of these Terms of Service is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of these Terms of Service shall be given full force and effect. These Terms of Service constitute and contain the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements.