1. Your relationship with NEBULONIUM, Inc.
a. Your use of NEBULONIUM, Inc.’s products, software, services and web sites (referred to collectively as the Services in this document) is subject to the terms of a legal agreement between you and NEBULONIUM, Inc. QWIK means QWIKboard.co and QWIKboard.io, web sites that contain services, and are owned by NEBULONIUM, Inc. This document explains how the agreement is made up and sets out some of the terms of that agreement.
b. For Education Premium accounts, you shall mean the educational institution purchasing the account, as well as its end users.
1.2 These Terms of Service form a legally binding agreement between you and NEBULONIUM, Inc. in relation to your use of the Services. It is important that you take the time to read them carefully. This legal agreement is referred to below as the Terms.
2. Accepting the Terms
2.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
2.2 You can accept the Terms by:
(A) clicking to accept or agree to the Terms, where this option is made available to you by NEBULONIUM, Inc. in the user interface for any Service; or
(B) by actually using the Services. In this case, you understand and agree that NEBULONIUM, Inc. will treat your use of the Services as acceptance of the Terms from that point onwards.
a. You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with NEBULONIUM, Inc. (unless you are part of Education Premium account (see Section 2.3(b)), or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are a resident or from which you use the Services.
b. By purchasing NEBULONIUM, Inc. Education Premium accounts, educational entities agree to (1) abide and be bound by these Terms, and (2) provide access to NEBULONIUM, Inc. only to those individuals employed by said entity as a teacher or administrator, or who are enrolled as students in the respective educational entity.
2.4 Before you continue, you should print off or save a local copy of the Terms for your records.
3. Language of the Terms
3.1 Where NEBULONIUM, Inc. has provided you with a translation of the English language version of the Terms, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with NEBULONIUM, Inc.
3.2 If there is any contradiction between what the English language version of the Terms says and what a translation says, then the English language version shall take precedence.
4. Provision of the Services by NEBULONIUM, Inc.
4.1 NEBULONIUM, Inc. is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which NEBULONIUM, Inc. provides may change from time to time without prior notice to you.
4.2 As part of this continuing innovation, you acknowledge and agree that NEBULONIUM, Inc. may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at NEBULONIUM, Inc.’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform NEBULONIUM, Inc. when you stop using the Services.
4.3 You acknowledge and agree that if NEBULONIUM, Inc. disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
4.4 You acknowledge and agree that while NEBULONIUM, Inc. may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by NEBULONIUM, Inc. at any time, at NEBULONIUM, Inc.’s discretion.
5. Use of the Services by you
5.1 In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details, name of school district, name of educational institution, occupation, certification of original authorship of uploaded content, etc.), as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to NEBULONIUM, Inc. will always be accurate, correct and up to date.
5.2 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
5.3 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by NEBULONIUM, Inc., unless you have been specifically allowed to do so in a separate agreement with NEBULONIUM, Inc. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services.
5.4 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
5.5 Unless you have been specifically permitted to do so in a separate agreement with NEBULONIUM, Inc., you agree that you will not reproduce, duplicate, copy, attempt to create a substitute or similar service through use of or access to, sell, trade or resell the Services for any purpose.
5.6 You agree that you are solely responsible for (and that NEBULONIUM, Inc. has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which NEBULONIUM, Inc. may suffer) of any such breach.
5.7 We do not assume any responsibility for special processing or handling of data that might be considered sensitive or otherwise regulated by particular laws. You specifically consent to our processing of data that you upload to the Service with no special handling, and you agree that you will not, and will use commercially reasonable efforts to make sure a third party does not, use the Services to store or transfer any data that is controlled for export under any export or reexport control law or regulation, or is otherwise subject by law to special processing restrictions (for example, privacy, financial services, and health information laws and regulations).
5.8 You agree that you are responsible for your own conduct and Content while using the Services and for any consequences thereof. For Education Premium accounts, educational institutions and school districts are responsible for all user Content, Communications, and activity that occur under user’s accounts. You agree to use the Services only for purposes that are legal, proper and in accordance with these Terms.
6. Billing and Payment
6.1 If you select a paid Services level, you may choose to subscribe and pay for the Services on either a monthly or annual basis and NEBULONIUM, Inc. will bill the account administrator in advance for use of the Services. Current pricing for monthly and annual paid levels are as set forth on the NEBULONIUM, Inc. web site, and NEBULONIUM, Inc. reserves the right to modify pricing at any time, provided however that NEBULONIUM, Inc. will notify the account administrator of a paid level account by email prior to any monthly or annual price increase affecting that account. If you upgrade to a higher paid level or tier, NEBULONIUM, Inc. will credit any remaining balance from your previous subscription payment to your new level or tier. You may choose to discontinue your paid level account at any time; however, NEBULONIUM, Inc. does not issue refunds for unused subscription periods.
6.2 You agree to maintain valid and up-to-date billing information on file with NEBULONIUM, Inc. You may update this billing information at any time in your Account settings.
6.3 All payments due are in U.S. dollars unless otherwise indicated on the subscription pricing page or invoice.
a. Credit Card or Debit Card. Fees for accounts where you are paying with a credit card, debit card or other non-invoice form of payment are due at the beginning of the month for which Services will be provided to you. For credit cards, or debit cards: (i) NEBULONIUM, Inc. will charge you for all fees when due at the beginning of each service month or year, as applicable; and (ii) these fees are considered delinquent if not received at the start of each service month or year.
b. Invoices. Payments for invoices are due ten days after the invoice date, unless otherwise specified, and are considered delinquent after such date.
c. Renewal. For paid levels, at the end of each annual or monthly subscription period (as applicable), the Services will automatically renew for an additional year or month, respectively. If you wish to change your subscription level or term, the account administrator must change the settings in the account administration console provided as part of the Services.
d. Other Forms of Payment. NEBULONIUM, Inc. may enable other forms of payment by making them available in the account administration and payments page. These other forms of payment may be subject to additional terms which you may have to accept prior to using the additional forms of payment.
6.4 Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including attorneys' fees) incurred by NEBULONIUM, Inc. in collecting such delinquent amounts, except where such delinquent amounts are due to NEBULONIUM, Inc.'s billing inaccuracies.
6.5 NEBULONIUM, Inc. will endeavor to notify you (or in the case of a Team account, your account administrator) if your paid account has delinquent fees. If delinquent fees are not paid, NEBULONIUM, Inc. will automatically downgrade your account to a free NEBULONIUM, Inc. account and/or suspend your use of the Services.
6.6 You are responsible for any taxes, duties, and customs fees associated with the sale of the Services (other than NEBULONIUM, Inc. s income tax) (collectively Taxes), and you will pay NEBULONIUM, Inc. for the Services without any reduction for Taxes. If NEBULONIUM, Inc. is obligated to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide NEBULONIUM, Inc. with a valid tax exemption certificate authorized by the appropriate taxing authority. If you are required by law to withhold any Taxes from your payments to NEBULONIUM, Inc., you must provide NEBULONIUM, Inc. with an official tax receipt or other appropriate documentation to support such payments.
6.7 These billing and payment terms may not apply if you are not subscribing to the Services directly from NEBULONIUM, Inc.
7. Your passwords and account security
7.1 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
7.2 Accordingly, you agree that you will be solely responsible to NEBULONIUM, Inc. for all activities that occur under your account.
7.3 If you become aware of any unauthorized use of your password or of your account, you agree to notify NEBULONIUM, Inc. immediately at support@QWIK.email.
8. Privacy and your personal information
8.2 You agree to the use of your data in accordance with NEBULONIUM, Inc.’s privacy policies.
9. Content in the Services
9.1 You understand that all information (such as data files, fonts, written text, computer software, music, audio files, image files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the Content.
9.2 You should be aware that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to NEBULONIUM, Inc. (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by NEBULONIUM, Inc. or by the owners of that Content, in a separate agreement.
9.3 NEBULONIUM, Inc. reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.
9.4 You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Services at your own risk.
9.5 You agree that you are solely responsible for (and that neither NEBULONIUM, Inc. nor the third party provider through whom you purchased NEBULONIUM, Inc. has any responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which NEBULONIUM, Inc. may suffer) by doing so.
10. Proprietary rights
10.1 You acknowledge and agree that NEBULONIUM, Inc. (or NEBULONIUM, Inc.’s licensors) and its resellers own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by NEBULONIUM, Inc. or its resellers and that you shall not disclose such information without NEBULONIUM, Inc.’s prior written consent.
10.2 Unless you have agreed otherwise in writing with NEBULONIUM, Inc., nothing in the Terms gives you a right to use any of NEBULONIUM, Inc.’s or its resellers' trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
10.3 If you have been given an explicit right to use any of these brand features in a separate written agreement with NEBULONIUM, Inc., then you agree that your use of such features shall be in compliance with that agreement, and any applicable provisions of the Terms.
10.4 Other than the limited license set forth in Section 13, NEBULONIUM, Inc. acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with NEBULONIUM, Inc., you agree that you are responsible for protecting and enforcing those rights and that NEBULONIUM, Inc. has no obligation to do so on your behalf.
10.5 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.
10.6 Unless you have been expressly authorized to do so in writing by NEBULONIUM, Inc., you agree that in using the Services, you will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
11.1. If you have a paid or educational NEBULONIUM, Inc. account, NEBULONIUM, Inc. may identify you as a customer on our site or in our customer list, blogs, and other public communications. To request removal of this identification, please notify us in writing at support@QWIK.email or by sending a letter to NEBULONIUM, Inc.’s address which is found at the beginning of these Terms. In some cases, we may not be able to remove your information, in which case we will let you know if we are unable to do so and why.
12. License from NEBULONIUM, Inc.
12.1 NEBULONIUM, Inc. gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by NEBULONIUM, Inc. as part of the Services as provided to you by NEBULONIUM, Inc. (referred to as the Software below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by NEBULONIUM, Inc., in the manner permitted by the Terms.
12.2 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by NEBULONIUM, Inc., in writing.
12.3 Unless NEBULONIUM, Inc. has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
13. License from you
13.2 You understand that NEBULONIUM, Inc., in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit NEBULONIUM, Inc. to take these actions.
13.3 You confirm and warrant to NEBULONIUM, Inc. that you have all the rights, power and authority necessary to grant the above license. You agree that you will not submit, share, upload, post or display Content on or through, the Service that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to submit, share, upload, post or display the Content and to grant NEBULONIUM, Inc. all of the license rights granted in this Section.
14. Software updates
14.1 The Software which you use may automatically download and install updates from time to time from NEBULONIUM, Inc. These updates are designed to improve, enhance, and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit NEBULONIUM, Inc. to deliver these to you) as part of your use of the Services.
15. Ending your relationship with NEBULONIUM, Inc.
15.1 The Terms will continue to apply until terminated by either you or NEBULONIUM, Inc. as set out below.
15.2 If you want to terminate your legal agreement with NEBULONIUM, Inc., you may do so by (a) notifying NEBULONIUM, Inc. at any time and (b) closing your accounts for all of the Services which you use, where NEBULONIUM, Inc. has made this option available to you. Your notice should be sent, in writing, to NEBULONIUM, Inc.’s address which is set out at the beginning of these Terms or to support@QWIK.email.
15.3 NEBULONIUM, Inc. may at any time, terminate its legal agreement with you:
(A) if you have breached any provision of the Terms (or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
(B) if NEBULONIUM, Inc. is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
(C) if NEBULONIUM, Inc. is transitioning to no longer providing the Services to users in the area in which you are resident or from which you use the service; or
(D) if the provision of the Services to you by NEBULONIUM, Inc. is, in NEBULONIUM, Inc.’s opinion, no longer commercially viable.
15.4 In addition, NEBULONIUM, Inc. may terminate its legal agreement with you, for any reason or no reason, by giving you 5 days written notice to the email address you provide when you register for NEBULONIUM, Inc. If we discontinue your access to the Services at the end of this 5 day period, our termination will be effective at the end of this period. You may continue using the Services through the end of the subscription period, at which point our termination will become effective.
15.5 Nothing in this Section shall affect NEBULONIUM, Inc.’s rights regarding provision of Services under Section 4 of the Terms.
15.6 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and NEBULONIUM, Inc. have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of section 23 shall continue to apply to such rights, obligations and liabilities indefinitely.
15.7 If your NEBULONIUM, Inc. account is canceled, your information on our servers may be deactivated but not deleted. We do not actively delete your profile information, for example your name and email address. Any content that you do not wish to remain on our servers after ending your relationship with NEBULONIUM, Inc. should be deleted prior to closing your account.
16. EXCLUSION OF WARRANTIES
16.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 16 AND 17, SHALL EXCLUDE OR LIMIT NEBULONIUM, INC.’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND AS AVAILABLE.
16.3 IN PARTICULAR, NEBULONIUM, INC. AND ITS LICENSORS AND RESELLERS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
16.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
16.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NEBULONIUM, INC. OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
16.6 NEBULONIUM, INC. AND ITS LICENSORS AND RESELLERS FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
17. LIMITATION OF LIABILITY
17.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 16.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEBULONIUM, INC. AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY CHANGES WHICH NEBULONIUM, INC. MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(II) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(III) YOUR FAILURE TO PROVIDE NEBULONIUM, INC. WITH ACCURATE ACCOUNT INFORMATION;
(IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
17.2 THE LIMITATIONS ON NEBULONIUM, INC.’S LIABILITY, AND THAT OF ITS LICENSORS AND RESELLERS, TO YOU IN PARAGRAPH 17.1 ABOVE SHALL APPLY WHETHER OR NOT NEBULONIUM, INC., ITS LICENSORS OR RESELLERS HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
18. Copyright policies
18.1 NEBULONIUM, Inc. does not permit infringement of intellectual property rights on its Services. NEBULONIUM, Inc. may remove Content if it believes or has reason to believe such Content infringes on another’s copyright. Without prior notice and at any time at its sole discretion, NEBULONIUM, Inc. reserves the right to remove any Content, disable your ability to share or upload Content within the Service, or terminate your access to the Service (a) for uploading or sharing such Content in violation of these Terms of Service; or (b) if, under appropriate circumstances, you are determined to be a repeat infringer.
18.2 NEBULONIUM, Inc. reserves the right in its sole discretion to decide whether your conduct is inappropriate and whether it complies with these Terms of Service for violations other than copyright infringement, such as, but not limited to, pornography, obscene or defamatory material, etc. NEBULONIUM, Inc. may terminate your access for such inappropriate conduct in violation of these Terms of Service at any time and remove any such objectionable Content, without prior notice and at its sole discretion.
18.3 If you believe that NEBULONIUM, Inc., or any user of the Services, has violated a copyright, trademark or other right you claim in your work, please contact us pursuant to the U.S. Digital Millennium Copyright Act (DMCA) at legal@QWIK.email.
19.1 Some of the Services may be supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.
19.2 The manner, mode and extent of advertising by NEBULONIUM, Inc. on the Services are subject to change without specific notice to you.
19.3 In consideration for NEBULONIUM, Inc. granting you access to and use of the Services, you agree that NEBULONIUM, Inc. may place such advertising on the Services.
20. Other content
20.1 The Services may include hyperlinks to other web sites or content or resources. NEBULONIUM, Inc. may have no control over any web sites or resources which are provided by companies or persons other than NEBULONIUM, Inc.
20.2 You acknowledge and agree that neither NEBULONIUM, Inc. nor its licensors or resellers are responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
20.3 You acknowledge and agree that neither NEBULONIUM, Inc. nor its licensors or resellers are liable for any loss or damage which may be incurred by you because of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
21. Community Galleries
21.1 The Service may contain galleries that may present third party content ("Community Galleries"). Community Galleries include without limitation the Templates Library and any other gallery that NEBULONIUM, Inc. chooses at its discretion to make available to you. The content and information in the Community Galleries ("Gallery Content"), such as templates, was created by NEBULONIUM, Inc. or by third parties. As between you and the creators of Gallery Content, any intellectual property or proprietary rights remain with the creators.
21.2 The Gallery Content: (a) is meant to serve as a suggestion only; and (b) is not a substitute for professional advice or specific, authoritative knowledge or direction. NEBULONIUM, Inc. does not promise that the Gallery Content will work for your purposes, or that it is free from viruses, bugs, or other defects. The Gallery Content is provided "as is" and without warranty of any kind. You alone bear the risk of using Gallery Content. NEBULONIUM, Inc. and its suppliers provide no express warranties, guarantees and conditions with regard to the Gallery Content. To the extent permitted under applicable law, NEBULONIUM, Inc. excludes the implied warranties and conditions of merchantability, fitness for a particular purpose, workmanlike effort, title and non-infringement.
21.3 If you choose to submit Content to become part of the Community Galleries (your Gallery Submission), you direct and authorize NEBULONIUM, Inc. and its affiliates to host, link to, and otherwise incorporate your Gallery Submission into the Services, and you grant NEBULONIUM, Inc. and its end users a worldwide, royalty-free, non-exclusive license to exercise the rights in the Gallery Submission, as stated below:
(A) to reproduce the Gallery Submission;
(B) to create and reproduce derivative works of the Gallery Submission;
(C) to display publicly and distribute copies of the Gallery Submission;
(D) to display publicly and distribute copies of derivative works of the Gallery Submission.
You agree that your license to NEBULONIUM, Inc. and NEBULONIUM, Inc. end users will be perpetual. Furthermore, for the avoidance of doubt, NEBULONIUM, Inc. reserves, and you grant NEBULONIUM, Inc., the right to syndicate the Gallery Submission submitted by you and use that Gallery Submission in connection with any of the Services offered by NEBULONIUM, Inc. You retain the right to stop distributing the Gallery Submission through the NEBULONIUM, Inc. Community Galleries at any time; provided, however that any such election will not serve to withdraw the licenses granted to NEBULONIUM, Inc. and its end users under these Terms of Service. To stop distributing the Gallery Submission through the NEBULONIUM, Inc. Community Galleries, you must utilize the removal functions provided within the Services, in which case the Gallery Submission removal will be effective within a reasonable amount of time.
21.4 You represent and warrant that (a) you own or have obtained the necessary legal rights to provide all Gallery Submissions you submit through the Services and will maintain these rights for as long as the Gallery Submission is available to NEBULONIUM, Inc. end users; and (b) all of the Gallery Submission you submit through the Services abide by the posted Program Policies.
21.5 NEBULONIUM, Inc. claims no ownership over any Gallery Submission you submit through the Services. You retain copyright and any other rights, including all intellectual property rights, you already hold in the Gallery Submission. You agree that you are responsible for protecting and enforcing those rights and that NEBULONIUM, Inc. has no obligation to do so on your behalf.
21.6 You agree that you are solely responsible for (and that NEBULONIUM, Inc. has no responsibility to you or to any third party for) any Gallery Submission that you submit. NEBULONIUM, Inc. is not in any way responsible for the subsequent use or misuse by NEBULONIUM, Inc. end users who access your Gallery Submission.
21.7 You hereby agree to indemnify, defend and hold NEBULONIUM, Inc., its resellers, partners, officers, directors, agents, affiliates, and licensors ("the Indemnified Parties") harmless from and against any claim or liability arising out of (a) any Content you submit, share, upload, post or display on or to the Service; (b) any use by NEBULONIUM, Inc. end users of your Content; (c) any breach of or noncompliance with any representation, warranty or obligation in these Terms or applicable policies; and (d) any claim that your Content violates any applicable law, including without limitation that it infringes the rights of a third party. You shall cooperate fully in the defense of any claim. NEBULONIUM, Inc. reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You acknowledge that damages for improper use of the Services may be irreparable; therefore, NEBULONIUM, Inc. is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies. This section shall take precedence only over the indemnity provision provided in any Terms.
22. Changes to the Terms
22.1 NEBULONIUM, Inc. may make changes to the Terms from time to time. When these changes are made, NEBULONIUM, Inc. will make a new copy of the Terms available at https://QWIKboard.io/terms.
22.2 You understand and agree that if you use the Services after the date on which the Terms have changed, NEBULONIUM, Inc. will treat your use as acceptance of the updated Terms.
23. General legal terms
23.1 Sometimes when you use the Services, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals.
23.2 The Terms constitute the whole legal agreement between you and NEBULONIUM, Inc. and govern your use of the Services (but excluding any services which NEBULONIUM, Inc. may provide to you under a separate written agreement), and completely replace any prior agreements between you and NEBULONIUM, Inc. in relation to the Services.
23.3 You agree that NEBULONIUM, Inc. may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
23.4 You agree that if NEBULONIUM, Inc. does not exercise or enforce any legal right or remedy which is contained in the Terms (or which NEBULONIUM, Inc. has the benefit of under any applicable law), this will not be taken to be a formal waiver of NEBULONIUM, Inc.’s rights and that those rights or remedies will still be available to NEBULONIUM, Inc.
23.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
23.6 The Terms, and your relationship with NEBULONIUM, Inc. under the Terms, shall be governed by the laws of the State of Nevada without regard to its conflict of laws provisions. You and NEBULONIUM, Inc. agree to submit to the exclusive jurisdiction of the courts located within Washoe County, Sparks, Nevada to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that NEBULONIUM, Inc. shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
A beta test agreement establishes two primary promises between the user and the Web Sites QWIKboard.co and QWIKboard.io which belong to NEBULONIUM, Inc. First, the user will maintain a level confidentiality in their use of the product. Second, the user disclaims liability arising from the product and understands that the product could be inferior or may not function properly because it is a "beta" product.
This Beta Test Agreement (“Beta Test Agreement”) governs the disclosure of information by NEBULONIUM, Inc., (“Company”) to _You_ (the “Recipient”) and Recipient’s use of Company’s beta service offering.
1.1 Subject to the terms and conditions of this Beta Test Agreement, Company grants Recipient a nonexclusive, nontransferable license to use the Company service (“Beta Service”) for a period designated by the Company for the purpose of testing and evaluating the Beta Service.
1.2 The Recipient agrees that it will at all times hold in strict confidence and not disclose Confidential Information (as defined below) to any third party except as approved in writing by the Company and will use the Confidential Information for no purpose other than evaluating the Beta Service. The Recipient shall only permit access to Confidential Information to those of its employees having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. “Confidential Information” means all non-public materials and information provided or made available by Company to Recipient, including products and services, information regarding technology, know-how, processes, software programs, research, development, financial information and information the Company provides regarding third parties.
1.3 The Recipient’s obligations under this Beta Test Agreement with respect to any portion of the Confidential Information shall terminate when the Recipient can document that: (a) it was in the public domain at the time it was communicated to the Recipient; (b) it entered the public domain subsequent to the time it was communicated to the Recipient through no fault of the Recipient; (c) it was in the Recipient’s possession free of any obligation of confidence at the time it was communicated to the Recipient; (d) it was rightfully communicated to the Recipient free of any obligation of confidence subsequent to the time it was communicated to the Recipient; or (e) it was developed by employees or agents of the Recipient who had no access to any information communicated to the Recipient. After Recipient’s evaluation of the Beta Service is complete, or upon request of the Company, the Recipient shall promptly return to the Company all documents, notes and other tangible materials and return or certify the destruction of all electronic documents, notes, software, data, and other materials in electronic form representing the Confidential Information and all copies thereof.
1.4 The Recipient agrees that nothing contained in this Beta Test Agreement shall be construed as granting any ownership rights to any Confidential Information disclosed pursuant to this Beta Test Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right. The Recipient shall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information or the Beta Service. The Recipient will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information or the Beta Service.
1.5 This Beta Service is a beta release offering and is not at the level of performance of a commercially available product offering. The Beta Service may not operate correctly and may be substantially modified prior to first commercial release, or at Company’s option may not be released commercially in the future. THE BETA SERVICE AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND COMPANY AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN ADVICE OR CONSULTATION GIVEN BY COMPANY, ITS AGENTS OR EMPLOYEES WILL IN ANY WAY GIVE RISE TO A WARRANTY. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE BETA SERVICE REMAINS WITH RECIPIENT.
1.6 COMPANY AND ITS LICENSORS SHALL NOT BE LIABLE FOR LOSS OF USE, LOST PROFIT, COST OF COVER, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE BETA SERVICE OR THIS BETA TEST AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS BETA TEST AGREEMENT EXCEED $50.00 OR THE AMOUNT RECIPIENT ACTUALLY PAID COMPANY UNDER THIS BETA TEST AGREEMENT (IF ANY).
1.7 The Recipient’s obligations under this Beta Test Agreement shall survive any termination of this beta test agreement. This Beta Test Agreement shall be governed by and construed in accordance with the laws of Colorado. The Recipient hereby agrees that breach of this Beta Test Agreement will cause Company irreparable damage for which recovery of damages would be inadequate, and that the Company shall therefore be entitled to obtain timely injunctive relief under this Beta Test Agreement, as well as such further relief as may be granted by a court of competent jurisdiction. The Recipient will not assign or transfer any rights or obligations under this Beta Test Agreement without the prior written consent of the Company.
The Recipient has caused this Beta Test Agreement to be executed as of the acceptance of this Beta Test Agreement when the “Signup” process has been initiated and completed through the Beta Test Software portal.
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