QuesGen Systems,
Inc.
User Subscription
Agreement
Selecting the ‘Agree to Terms’ and
proceeding with the registration process means that you
will be governed by the following terms and conditions
which are subject to change from time to time.
Additionally, if you represent an institution or other
organization, you also represent that you have the
authority to enter into this agreement. If you do not
agree to these terms and conditions, you may not use
products developed by QuesGen Systems, Inc. unless others
terms and conditions have been agreed to in writing between
the parties.
The QuesGen and Digmet.com products are owned and operated
by QuesGen Systems, Inc. a Delaware corporation with
offices located at 800 Airport Blvd, Suite 418, Burlingame,
CA 94010 and mailing address of 1325 Howard Ave,
#437, Burlingame, CA 94010.
1. Privacy &
Security; Disclosure
Quesgen Systems, Inc.’s privacy and security policies may
be viewed at http://www.quesgen.com.
Quesgen Systems, Inc. reserves the right to modify its
privacy and security policies in its reasonable discretion
from time to time. Note that because the Service is a
hosted, online application, Quesgen Systems, Inc.
occasionally may need to notify all users of the Service of
important announcements regarding the operation of the
Service. If Licensee becomes a paying customer of the
Service, Licensee agrees that Quesgen Systems, Inc. can
disclose the fact that Licensee is a customer.
2. License Grant &
Restrictions
Quesgen Systems, Inc. hereby grants Licensee a
non-exclusive, non-transferable, worldwide license to use
the Service, solely for internal purposes, subject to the
terms and conditions of this Agreement. All rights
not expressly granted to Licensee are reserved by Quesgen
Systems, Inc. and its licensors.
Licensee shall not (i) license, sublicense, sell, resell,
transfer, assign, distribute or otherwise commercially
exploit or make available to any third party the Service or
the Content in any way; (ii) modify or make derivative
works based upon the Service or the Content; (iii) create
Internet "links" to the Service or "frame" or "mirror" any
Content on any other server or wireless or Internet-based
device; or (iv) reverse engineer or access the Service in
order to (a) build a competitive product or service, (b)
build a product using similar ideas, features, functions or
graphics of the Service, or (c) copy any ideas, features,
functions or graphics of the Service. User licenses
cannot be shared or used by more than one individual User
but may be reassigned from time to time to new Users who
are replacing former Users who have terminated employment
or otherwise changed job status or function and no longer
use the Service.
Licensee may use the Service only for internal research
purposes and shall not: (i) send spam or otherwise
duplicative or unsolicited messages in violation of
applicable laws; (ii) send or store infringing, obscene,
threatening, libelous, or otherwise unlawful or tortious
material, including material harmful to children or
violative of third party privacy rights; (iii) send or
store material containing software viruses, worms, Trojan
horses or other harmful computer code, files, scripts,
agents or programs; (iv) interfere with or disrupt the
integrity or performance of the Service or the data
contained therein; or (v) attempt to gain unauthorized
access to the Service or its related systems or networks.
3. Licensee’s
Responsibilities
Licensee is responsible for all activity occurring under
Licensee’s User accounts and shall abide by all applicable
local, state, national and foreign laws, treaties and
regulations in connection with use of the Service,
including those related to data privacy, international
communications and the transmission of technical or
personal data. Licensee shall: (i) notify Quesgen
Systems, Inc. immediately of any unauthorized use of any
password or account or any other known or suspected breach
of security; (ii) report to Quesgen Systems, Inc.
immediately and use reasonable efforts to stop immediately
any copying or distribution of Content that is known or
suspected by Licensee or its Users; and (iii) not
impersonate another Quesgen Systems, Inc. user or provide
false identity information to gain access to or use the
Service.
4. Account Information
and Data
Quesgen Systems, Inc. does not own any data, information or
material that Licensee submits to the Service in the course
of using the Service ("Research Data"). Licensee, not
Quesgen Systems, Inc., shall have sole responsibility for
the accuracy, quality, integrity, legality, reliability,
appropriateness, and intellectual property ownership or
right to use of all Research Data, and Quesgen Systems,
Inc. shall not be responsible or liable for the deletion,
correction, destruction, damage, loss or failure to store
any Research Data. In the event this Agreement is
terminated (other than by reason of Licensee breach),
Quesgen Systems, Inc. will make available to Licensee a
file of the Research Data within 30 days of termination if
so requested at the time of termination. Quesgen
Systems, Inc. reserves the right to withhold, remove and/or
discard Research Data without notice for any breach,
including, without limitation, Licensee’s non-payment. Upon
termination for cause, Licensee’s right to access or use
Research Data immediately ceases, and Quesgen Systems, Inc.
shall have no obligation to maintain or forward any
Research Data.
5. Intellectual
Property Ownership
Quesgen Systems, Inc. alone (and its licensors, where
applicable) shall own all right, title and interest,
including all related Intellectual Property Rights, in and
to the Quesgen Systems, Inc. Technology (including
Digmet.com), the Content and the Service and any
suggestions, ideas, enhancement requests, feedback,
recommendations or other information provided by Licensee
or any other party relating to the Service. This Agreement
is not a sale and does not convey to Licensee any rights of
ownership in or related to the Service, the Quesgen
Systems, Inc. Technology or the Intellectual Property
Rights owned by Quesgen Systems, Inc., The Quesgen Systems,
Inc. and Digmet.com name, the Quesgen Systems, Inc. logo,
and the product names associated with the Service are
trademarks of Quesgen Systems, Inc. or third parties, and
no right or license is granted to use them.
6. Charges and Payment
of Fees
Licensee shall pay all fees or charges in accordance with
the agreed upon Fee Schedule. Licensee is responsible
for paying for all User licenses ordered for the entire
License Term, whether or not such User licenses are
actively used. Added licenses will be subject to the
following: (i) added licenses will be coterminous with the
preexisting License Term (either Initial Term or renewal
term); (ii) the license fee for the added licenses will be
the then current, generally applicable license fee; and
(iii) licenses added in the middle of a billing month will
be charged in full for that billing month. Quesgen Systems,
Inc. reserves the right to modify its fees and charges and
to introduce new charges at any time, upon at least 30 days
prior notice to Licensee, which notice may be provided by
e-mail. All pricing terms are confidential, and Licensee
agrees not to disclose them to any third party.
7. Billing and
Renewal
Quesgen Systems, Inc. charges and collects in accordance
with the agreed upon Fee Schedule. The
renewal charge will be equal to the then-current license
fee in effect during the prior term, unless Quesgen
Systems, Inc. has given Licensee at least 30 days prior
written notice of a fee increase, which shall be effective
upon renewal and thereafter. Fees for other services will
be charged on an as-quoted basis. Quesgen Systems, Inc.’s
fees are exclusive of all taxes, levies, or duties imposed
by taxing authorities, and Licensee shall be responsible
for payment of all such taxes, levies, or duties, excluding
only United States (federal or state) taxes based solely on
Quesgen Systems, Inc.’s income.
Licensee agrees to provide Quesgen Systems, Inc. with
complete and accurate billing and contact information. This
information includes legal company or institution name,
street address, e-mail address, and name and telephone
number of an authorized billing contact and License
Administrator. Licensee agrees to update this information
within 30 days of any change to it.
If Licensee believes its bill is incorrect, Licensee must
contact Quesgen Systems, Inc. in writing within 60 days of
the invoice date of the invoice containing the amount in
question to be eligible to receive an adjustment or credit.
8. Non-Payment and
Suspension
In addition to any other rights granted to Quesgen Systems,
Inc. herein, Quesgen Systems, Inc. reserves the right to
suspend or terminate this Agreement and Licensee’s access
to the Service if Licensee’s account becomes delinquent
(falls into arrears). Delinquent invoices (accounts in
arrears) are subject to interest of 1.0% per month on any
outstanding balance, or the maximum permitted by law,
whichever is less, plus all expenses of collection.
Licensee agrees and acknowledges that Quesgen Systems, Inc.
has no obligation to retain Research Data and that such
Research Data may be irretrievably deleted if account is 90
days or more delinquent.
9. Termination upon
Expiration
This Agreement commences on the Effective Date. Upon the
expiration of the Initial Term, this Agreement will
automatically renew for successive renewal terms equal in
duration to the Initial Term (or one year, if the Initial
Term is greater than one year) at Quesgen Systems, Inc.’s
then current fees. Either party may terminate this
Agreement or reduce the number of licenses, effective only
upon the expiration of the then current License Term, by
notifying the other party in writing at least five (5)
business days prior to the date of the invoice for the
following term. In the event this Agreement is terminated
(other than by reason of Licensee’s breach), Quesgen
Systems, Inc. will make available to Licensee a file of the
Research Data within 30 days of termination if so requested
at the time of termination. Licensee agrees and
acknowledges that Quesgen Systems, Inc. has no obligation
to retain the Research Data, and may delete such Research
Data, more than 30 days after termination.
10. Termination for
Cause
Any breach of your payment obligations or unauthorized use
of the Quesgen Systems, Inc. Technology or Service will be
deemed a material breach of this Agreement. Quesgen
Systems, Inc., in its sole discretion, may terminate any
password, account or use of the Service if Licensee
breaches or otherwise fails to comply with this Agreement.
Licensee agrees and acknowledges that Quesgen Systems, Inc.
has no obligation to retain the Research Data, and may
delete such Research Data, if Licensee has materially
breached this Agreement, including but not limited to
failure to pay outstanding fees, and such breach has not
been cured within 30 days of notice of such breach.
11. Representations
& Warranties
Each party represents and warrants that it has the legal
power and authority to enter into this Agreement.
Quesgen Systems, Inc. represents and warrants that it will
provide the Service in a manner consistent with general
industry standards reasonably applicable to the provision
thereof and that the Service will perform substantially in
accordance with reasonable functional requirements under
normal use and circumstances.
12. Mutual
Indemnification
You shall indemnify and hold Quesgen Systems, Inc., its
licensors and each such party's parent organizations,
subsidiaries, affiliates, officers, directors, employees,
attorneys and agents harmless from and against any and all
claims, costs, damages, losses, liabilities and expenses
(including attorneys' fees and costs) arising out of or in
connection with: (i) a claim alleging that use of the
Research Data infringes the rights of, or has caused harm
to, a third party; (ii) a claim, which if true, would
constitute a violation by you of your representations and
warranties; or (iii) a claim arising from the breach by you
or your Users of this Agreement, provided in any such
case that Quesgen Systems, Inc. (a) gives written notice of
the claim promptly to you; (b) gives you sole control of
the defense and settlement of the claim (provided that you
may not settle or defend any claim unless you
unconditionally release Quesgen Systems, Inc. of all
liability and such settlement does not affect Quesgen
Systems, Inc.’s business or Service); (c) provides to you
all available information and assistance; and (d) has not
compromised or settled such claim.
Quesgen Systems, Inc. shall indemnify and hold you and your
parent organizations, subsidiaries, affiliates, officers,
directors, employees, attorneys and agents harmless from
and against any and all claims, costs, damages, losses,
liabilities and expenses (including attorneys' fees and
costs) arising out of or in connection with: (i) a claim
alleging that the Service directly infringes a copyright, a
U.S. patent issued as of the Effective Date, or a trademark
of a third party; (ii) a claim, which if true, would
constitute a violation by Quesgen Systems, Inc. of its
representations or warranties; or (iii) a claim arising
from breach of this Agreement by QuesGen Systems; provided
that you (a) promptly give written notice of the claim to
QuesGen Systems; (b) give Quesgen Systems, Inc. sole
control of the defense and settlement of the claim
(provided that Quesgen Systems, Inc. may not settle or
defend any claim unless it unconditionally releases you of
all liability); (c) provide to Quesgen Systems, Inc. all
available information and assistance; and (d) have not
compromised or settled such claim. Quesgen Systems, Inc.
shall have no indemnification obligation, and you shall
indemnify Quesgen Systems, Inc. pursuant to this Agreement,
for claims arising from any infringement arising from the
combination of the Service with any of your products,
service, hardware or business process(s).
13. Disclaimer of
Warranties
QUESGEN SYSTEMS, INC. AND ITS LICENSORS MAKE NO
REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE
RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH,
AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR
ANY CONTENT. QUESGEN SYSTEMS, INC. AND ITS LICENSORS DO NOT
REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL
BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE
IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR
DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR
EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR
RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES,
INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU
THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR
EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR
(F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE
AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON
AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND
WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE
HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW BY QUESGEN SYSTEMS, INC. AND ITS LICENSORS.
14. Internet
Delays
QUESGEN SYSTEMS, INC.’S SERVICES MAY BE SUBJECT TO
LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE
OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
QUESGEN SYSTEMS, INC. IS NOT RESPONSIBLE FOR ANY DELAYS,
DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH
PROBLEMS.
15. Limitation of
Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED
THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT
GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY
AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT,
PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR
OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA,
REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING
OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE,
INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE
THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH
THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR
OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE
PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S
LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
16. Additional
Rights
Certain states and/or jurisdictions do not allow the
exclusion of implied warranties or limitation of liability
for incidental, consequential or certain other types of
damages, so the exclusions set forth above may not apply to
you.
17. Local Laws
and Export Control
This site provides services and uses software and
technology that may be subject to United States export
controls administered by the U.S. Department of Commerce,
the United States Department of Treasury Office of Foreign
Assets Control, and other U.S. agencies and the export
control regulations of Switzerland and the European Union.
The user of this site ("User") acknowledges and agrees that
the site shall not be used, and none of the underlying
information, software, or technology may be transferred or
otherwise exported or re-exported to countries as to which
the United States, Switzerland and/or the European
Union maintains an embargo (collectively, "Embargoed
Countries"), or to or by a national or resident thereof, or
any person or entity on the U.S. Department of Treasury's
List of Specially Designated Nationals or the U.S.
Department of Commerce's Table of Denial Orders
(collectively, "Designated Nationals"). The lists of
Embargoed Countries and Designated Nationals are subject to
change without notice. By using the Service, you represent
and warrant that you are not located in, under the control
of, or a national or resident of an Embargoed Country or
Designated National. You agree to comply strictly with all
U.S., Swiss and European Union export laws and assume sole
responsibility for obtaining licenses to export or
re-export as may be required.
This site may use encryption technology that is subject to
licensing requirements under the U.S. Export Administration
Regulations, 15 C.F.R. Parts 730-774 and Council Regulation
(EC) No. 1334/2000
Quesgen Systems, Inc. and its licensors make no
representation that the Service is appropriate or available
for use in other locations. If you use the Service from
outside the United States of America, you are solely
responsible for compliance with all applicable laws,
including without limitation export and import regulations
of other countries. Any diversion of the Content contrary
to United States law is prohibited. None of the Content,
nor any information acquired through the use of the
Service, is or will be used for nuclear activities,
chemical or biological weapons, or missile projects, unless
specifically authorized by the United States government or
appropriate body for such purposes.
18.
Notice
Quesgen Systems, Inc. may give notice by means of a general
notice on the Service, electronic mail to your e-mail
address on record in Quesgen Systems, Inc.’s account
information, or by written communication sent by first
class mail or pre-paid post to your address on record in
Quesgen Systems, Inc.’s account information. Such notice
shall be deemed to have been given upon the expiration of
48 hours after mailing or posting (if sent by first class
mail or pre-paid post) or 12 hours after sending (if sent
by email). You may give notice to Quesgen Systems, Inc.
(such notice shall be deemed given when received by QuesGen
Systems) at any time by any of the following: letter sent
by confirmed facsimile to Quesgen Systems, Inc. at the
following fax numbers: (415) 608-3570. letter
delivered by nationally recognized overnight delivery
service or first class postage prepaid mail to Quesgen
Systems, Inc. at the following address: Quesgen Systems,
Inc., Inc. 1325 Howard Ave. #437, Burlingame,
CA 94010.
19. Assignment; Change
in Control
This Agreement may not be assigned by you without the prior
written approval of Quesgen Systems, Inc. but may be
assigned without your consent by Quesgen Systems, Inc. to
(i) a parent or subsidiary, (ii) an acquirer of assets, or
(iii) a successor by merger. Any purported assignment in
violation of this section shall be void. Any actual
or proposed change in control of you that results or would
result in a direct competitor of Quesgen Systems, Inc.
directly or indirectly owning or controlling 50% or more of
you shall entitle Quesgen Systems, Inc. to terminate this
Agreement for cause immediately upon written notice.
20.
General
With respect to U.S. Customers, this Agreement shall be
governed by California law and controlling United States
federal law, without regard to the choice or conflicts of
law provisions of any jurisdiction, and any disputes,
actions, claims or causes of action arising out of or in
connection with this Agreement or the Service shall be
subject to the exclusive jurisdiction of the state and
federal courts located in California.
No text or information set forth on any other purchase
order, preprinted form or document (other than an Order
Form, if applicable) shall add to or vary the terms and
conditions of this Agreement. If any provision of this
Agreement is held by a court of competent jurisdiction to
be invalid or unenforceable, then such provision(s) shall
be construed, as nearly as possible, to reflect the
intentions of the invalid or unenforceable provision(s),
with all other provisions remaining in full force and
effect. No joint venture, partnership, employment, or
agency relationship exists between you and Quesgen Systems,
Inc. as a result of this agreement or use of the Service.
The failure of Quesgen Systems, Inc. to enforce any right
or provision in this Agreement shall not constitute a
waiver of such right or provision unless acknowledged and
agreed to by Quesgen Systems, Inc. in writing. This
Agreement, together with any applicable Order Form and Fee
Schedule, comprises the entire agreement between you and
Quesgen Systems, Inc. and supersedes all prior or
contemporaneous negotiations, discussions or agreements,
whether written or oral, between the parties regarding the
subject matter contained herein.
21. Definitions
As used in this Agreement and in any Order Forms now or
hereafter associated herewith: "Content" means the audio
and visual information, documents, software, products and
services contained or made available to you in the course
of using the Service; "Research Data" means any data,
information or material provided or submitted by you to the
Service in the course of using the Service; "Initial Term"
means the initial period during which you are obligated to
pay for the Service equal to the billing frequency selected
by you during the subscription process (e.g., if the
billing frequency is quarterly, the Initial Term is the
first quarter); "Intellectual Property Rights" means
unpatented inventions, patent applications, patents, design
rights, copyrights, trademarks, service marks, trade names,
domain name rights, mask work rights, know-how and other
trade secret rights, and all other intellectual property
rights, derivatives thereof, and forms of protection of a
similar nature anywhere in the world; "License
Administrator(s)" means those Users designated by you who
are authorized to purchase licenses online using the Online
Order Center or by executing written Order Forms and to
create User accounts and otherwise administer your use of
the Service; "License Term(s)" means the period(s) during
which a specified number of Users are licensed to use
the Service pursuant to the Order Form(s); "Order Form(s)"
means the form evidencing the initial subscription for the
Service and any subsequent order forms submitted online or
in written form, specifying, among other things, the number
of licenses and other services contracted for, the
applicable fees, the billing period, and other charges as
agreed to between the parties, each such Order Form to be
incorporated into and to become a part of this Agreement
(in the event of any conflict between the terms of this
Agreement and the terms of any such Order Form, the terms
of this Agreement shall prevail); "QuesGen Systems" means
collectively Quesgen Systems, Inc., a Delaware corporation,
having its principal place of business at 800 Airport Blvd,
Suite 418, Burlingame, CA 94010 with mailing address
at Quesgen Systems, Inc., 1325 Howard Ave, #437,
Burlingame, CA 94010; "Quesgen Systems, Inc.
Technology" means all of Quesgen Systems, Inc.’s
proprietary technology (including software,
hardware, products, processes, algorithms, user interfaces,
know-how, techniques, designs and other tangible or
intangible technical material or information) made
available to you by Quesgen Systems, Inc. in providing the
Service; "Service(s)" means the specific edition of Quesgen
Systems, Inc.’s online research data management system
owned and maintained by Quesgen Systems, Inc., accessible
via http://www.quesgen.com
or another designated web
site or IP address, or ancillary online or offline products
and services provided to you by Quesgen Systems, Inc., to
which you are being granted access under this Agreement,
including the Quesgen Systems, Inc. Technology and the
Content; "User(s)" means your employees, representatives,
consultants, contractors or agents who are authorized to
use the Service and have been supplied user identifications
and passwords by you (or by Quesgen Systems, Inc. at your
request).
Questions or Additional Information:
If you have questions regarding this Agreement or wish to
obtain additional information, please send an e-mail to
info@quesgen.com