In the absence of a separate signed Subscription Agreement as may be the case for Free accounts, by logging into this system, you agree to the following terms:

1. SOFTWARE SERVICE.

This agreement provides you access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface. (Service).

2. USE OF SERVICE.

a) Customer Owned Data. All data uploaded by you to the Service remains your property (Customer Data). You grant Qliktag the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, you may export its Customer Data as allowed by functionality within the Service.

b) Access and Usage. You are responsible for the compliance with this agreement.

c) Responsibilities. You: (i) must keep passwords secure and confidential; (ii) are solely responsible for Customer Data and all activity in your account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to your account, and notify Qliktag promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s user guide and applicable law.

d) Qliktag Support. Qliktag may provide Customer support for the Service under the terms of Qliktag’s Customer Support Policy (Support), which is located at www.qliktag.com/support.

3. SERVICE LEVEL AGREEMENT & WARRANTY.

a) Warranty. Qliktag warrants that commercially reasonable efforts will be made to maintain the online availability of the Service and the API

b) DISCLAIMER. QLIKTAG DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE QLIKTAG TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, QLIKTAG DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

4. MUTUAL CONFIDENTIALITY.

a) Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Qliktag’s Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information. Customer’s Confidential Information includes, without limitation, the Customer Data.

b) Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c) Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

5. PROPERTY

a) Reservation of Rights. The Service and the Deliverables are the proprietary property of Qliktag and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with Qliktag. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Qliktag reserves all rights unless expressly granted in this agreement.

b) Restrictions. Customer may not: (i) except as explicitly allowed herein, sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.

c) Statistical Information. Qliktag may compile statistical information related to the performance of the Service, and may make such information publicly available, provided that such information does not identify Customer’s Confidential Information or any data, and there is no means to re-identify the information or data. Qliktag retains all intellectual property rights in such information.

d) API.  Qliktag shall provide to Customer subscribing to Commercial Version or above of Service, access to its application-programming interface (API) as part of the Service for no additional fee. Subject to the other terms of this agreement, Qliktag grants Customer a non-exclusive, nontransferable, terminable license to interact only with the Service as allowed by the API.

– Customer may not use the API in a manner–as reasonably determined by Qliktag–that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with any part of the API. If any of these occur, Qliktag can suspend or terminate Customer’s access to the API on a temporary or permanent basis.

– Qliktag may change or remove existing endpoints or fields in API results upon at least 30-day notice to Customer, but Qliktag will use commercially reasonable efforts to support the previous version of the API for at least 6 months. Qliktag may add new endpoints or fields in API results without prior notice to Customer.

6. TERM AND TERMINATION.

a) Term.

This agreement continues until your account is deactivated.

b) Return of Customer Data

        i. Qliktag will make the Service available for Customer to export Customer Data as provided in Section 2(a).

c) Return Qliktag Property Upon Termination. Upon termination of this agreement for any reason, Customer must destroy or return all property of Qliktag. Upon Qliktag’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

d) Suspension for Violations of Law. Qliktag may temporarily suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law. Qliktag will attempt to contact Customer in advance.

7. LIABILITY LIMIT.

a) Exclusion of Indirect Damages. Qliktag is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.

b) Total Limit on Liability. Except for Qliktag’s indemnity obligations, Qliktag’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.

8. DEFENSE OF THIRD-PARTY CLAIMS.

a) If a third party claims against Qliktag that any part of the Customer Data infringes or violates that party’s patent, copyright, or other right, Customer will defend Qliktag against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that Qliktag promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.

9. GOVERNING LAW AND FORUM.

This agreement is governed by the laws of the State of California (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Orange County, California, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

10. OTHER TERMS.

a) Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it.

b) No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.

c) Independent Contractors. The parties are independent contractors with respect to each other.

d) Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.

e) Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.

f) No Additional Terms. Qliktag rejects additional or conflicting terms of a Customer’s form-purchasing document.

g) Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.

h) Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.

i) Feedback. If Customer provides feedback or suggestions about the Service, then Qliktag (and those it allows to use its technology) may use such information without obligation to Customer.