Terms of Sale
(LAST UPDATED: March 1, 2017)
Welcome to uQontrol, uQontrol Inc., a Nevada corporation, “uQontrol”, “we”, “us”, or “our”) sells Qkey and other products (the “Product”) and provides our customers with the uQontrol software application supports interoperability when installed in Qkey and authorized digital devices such as PC, Servers, VPN, Cloud and other peripheral digital devices (i.e. Internet of Things “IoT”), and where Qkey is a web assistant device to simplify and expedite your experience on the web by holding personal data in a secure vault and actively using it to perform online transactional and navigational processes, as well as a number of related services enabled via the Qkey, Sites, Apps etc. The following terms and conditions (the “Terms of Sale”) form a binding agreement between you and us regarding your use of the Qkey, Sites, Apps and Services.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE PRODUCT(S) WEBSITE OR TO THE UQONTROL SOFTWARE APPLICATION WILL BE GOVERNED BY AND UNDER THE LAWS OF THE STATE OF IDAHO, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
These terms and conditions of sale (“Agreement”) are applicable to any product order placed with and accepted by uQontrol, Inc. (referred to herein as “the Company”) these terms are accepted without reservation for products purchased from the Company unless there is specific commercial distribution or purchase agreement signed by both the Company and the Buyer/Customer in which case these terms would subordinate to such an agreement,
- SCOPE OF AGREEMENT.The Company, upon acceptance of an Order placed by Buyer, will supply the products and services specified in the Order (the “Product”) to Buyer, pursuant to the terms and conditions of this Agreement and its exhibits and the Company’s acceptance of such order submitted by Buyer is expressly limited to the terms and conditions of this Agreement and related terms and conditions of the uQontrol End User License Agreement Terms of Service which is required to be used in conjunction with Product notwithstanding any contrary provision contained in Buyer’s purchase orders, invoices, acknowledgements or other documents. The details of the Product (e.g. quantity, price, and product specifications) shall be set forth in the relevant Order.
- PRICE AND TERMS.
For the General Retail Buyer (a) The prices payable by Buyer for goods and services to be supplied by the Company under this Agreement will be specified in the applicable Purchase Order. Unless otherwise expressly stated in a Purchase Order, all prices exclude shipping and taxes. (b) Payment terms are net due and payable at the time of purchase.
For the General Business Buyer Unless otherwise defined in a sign agreement between the Company and the Buyer, (a) The prices payable by Buyer for goods and services to be supplied by the Company under this Agreement will be net due and payable at the time of purchase or be specified in the applicable Purchase Order. Unless otherwise expressly stated in the Purchase Order, (b) all prices exclude shipping and taxes. (c) If the Company provides payment terms to the Buyer, the Buyer will in addition pay finance charges of one and one-half percent (1.5%) per month on the late balance and the Company reserves the right to (i) withhold shipment of the Product until full payment is made; and/or (ii) revoke any credit extended to Buyer. In the event that Buyer’s account is more than ninety (90) days in arrears, Buyer shall reimburse the Company for the reasonable costs, including attorney’s fees, of collecting such amounts from Buyer. In the event of any dispute regarding an invoice, no finance charges will apply in the event that Buyer provides written notice of the dispute prior to the due date for such payment. Upon such notification, the parties have 30 days to remedy the dispute interest free to the Buyer. (d) Upon reasonable request by the Company, Buyer shall provide copies of its most recent audited financial statements or other reasonable evidence of its financial capacity and such other information as the Company reasonable requests to determine credit status or credits limits. (e) Buyer shall provide notice within five (5) business days of the occurrence of any event which materially affects Buyer’s ability to perform its obligations under this Agreement. (f) Unless otherwise specified in the Order, the Product will be delivered FOB the Company’s manufacturing facility and will be shipped to Buyer via carriers selected by The Company.
- BUYER MATERIALS AND DATA.(a) Buyer represents and warrants that any matter it furnishes for performance of services by the Company (i) it does not infringe any copyright or trademark or other Intellectual Property Rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any persons right to privacy; and (iv) does not otherwise violate any laws or infringe the rights of any third party. (b) Buyer warrants that it has the right to use and to have the Company use on behalf of Buyer any data provided to the Company or its Affiliates by Buyer including specifically customer names, identifying information, addresses and other contact information and related personal information (“Data”). Buyer further warrants that it will designate on the applicable Order if Data provided pursuant to that Order is subject to HIPAA, Gramm-Leach-Bliley or other statutes providing enhanced data protection or requiring enhanced data security procedures.
- INTELLECTUAL PROPERTY.Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Buyer as of the date of the Order or made or conceived by employees of Buyer during the Term of the Order shall be and remain the sole and exclusive property of Buyer provided that Buyer grants to the Company an irrevocable, royalty free license to use, display and distribute (and to sub-license its affiliates and sub-contractors to use, display and distribute) any intellectual property rights delivered to the Company in perpetuity as reasonably necessary to perform any Order. Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by the Company as of the date of the Order or made or conceived by employees, consultants, representatives or agents of the Company during the term of this Agreement shall be and remain the sole and exclusive property of the Company. Without limiting the generality of the foregoing, the parties agree that the Company will own systems (including all web source code) related to the Services provided hereunder, including all modifications, upgrades and enhancements thereto made during the term of the Order. Without limiting the generality of the foregoing, Buyer acknowledges and agrees that the Company is in the business of developing customized print and e-commerce solutions, and the provision of print and fulfillment order services, and that the Company shall have the right to provide to third parties services which are the same or similar to the services provided herein and to use or otherwise exploit any the Company materials in providing such services.
- CONFIDENTIAL INFORMATION.Any information that parties receive or otherwise have access to incidental to or in connection with this Agreement (collectively, the “Confidential Information”), shall be and remain the property of the disclosing party. Confidential Information shall not include information which: (i) was in the possession of the Receiving Party at the time it was first disclosed by the Disclosing Party; (ii) was in the public domain at the time it was disclosed to the Receiving Party; (iii) enters the public domain through sources independent of the Receiving Party and through no breach of this provision by the Receiving Party; (iv) is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or (vi) was at any time developed by the Receiving Party independently of any disclosure by the Disclosing Party. Confidential Information may be used to the extent necessary to perform this Agreement and the parties shall not disclose Confidential Information to any third party, except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) as necessary to provide the Product hereunder. In no event shall Buyer acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with The Company and Buyer, and in no event, shall The Company acquire and right, title, or interest in and to any materials or information provided to it by Buyer.
- INDEMNIFICATION.The indemnifying party, as Indemnitor, shall indemnify, defend and hold harmless the indemnified party, as Indemnitee, its officers, directors, employees, agents, subsidiaries, and other affiliates from and against any and all claims, damages, liabilities, and expenses (including attorney fees) arising from any third-party claim based on Indemnitor’s (or its agent’s) breach of any representation, warranty, covenant, agreement, or obligation under the Order or this Agreement , or Indemnitor’s (or its agent’s) grossly negligent and/or willful acts in carrying out its obligations under the Order or the Agreement, provided that in no event shall the Company be responsible for any claims arising out of its compliance with instructions, requirements, or specifications provided by or required by Buyer (including the use of information, artwork, logos, and/or trademarks provided by Buyer). Neither party will be responsible for indemnifying another party hereto where the basis of the indemnity claim arises out of such other party’s own negligence or willful misconduct. In order to avail itself of this indemnity provision, Indemnitee shall promptly provide notice to Indemnitor of any such claim, tender the defense of the claim to Indemnitor, and cooperate with Indemnitor in the defense of the claim. Indemnitor shall not be liable for any cost, expense, or compromise incurred or made by Indemnitee in any legal action without the Indemnitor’s prior written consent.
- BREACH.In addition to all other rights to which a party is entitled under this Agreement, if either party breaches any term of the Order or the Agreement, the non-breaching party shall have the right to: (a) terminate the Order immediately upon written notice to the other party; and (b) seek to obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this Agreement. Failure to properly demand compliance or performance of any term of the Order or this Agreement shall not constitute a waiver of the Company’s rights hereunder and prior to any claim for damages being made for non-conformance or breach, Buyer shall provide the Company with reasonable notice of any alleged deficiencies in the Product or performance under the Order or this Agreement and the Company shall have a reasonable opportunity to cure any such alleged non-conformance or breach.
- WARRANTY.The Company warrants that the Product shall reasonably conform to specifications in all material respects. If applicable and at the Company’s option, the Company may provide Buyer with an on-line printing proof for Buyer approval. If a proof has been provided, once Buyer approves a proof, Buyer will be liable for all fees associated with the order, as specified in the Order. If Buyer supplies the Company stock or items for imprinting as part of the Order, the Company is not responsible for issues related to the quality of the stock or items for imprinting. The Company will not provide refunds for any Product conforming to specifications in all material respects. Other than the warranties set forth in this section, the Company makes no warranty of any kind, expressed or implied or otherwise whatsoever, that the services performed or any items produced will be merchantable or fit for any particular purpose or use. In the event of any breach of any warranty specified in this provision, Buyer’s exclusive remedy shall be that the Company shall, at its option, repair or replace any defective goods at no cost to Buyer or refund any purchase price paid for such Product. www.qkey.com/legal
- LIMITATION OF LIABILITY.IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND VENDOR’S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT AND THE ORDER SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED.
- NOTICE.Any notice sent pursuant to the Order or this Agreement shall be sent by certified mail, return receipt requested, or by overnight mail to the addresses on the Order or to such address as either party may in the future designate. A copy of any notice to the Company shall be also sent to the Company’s General Counsel together with a copy this Agreement. Notices shall be effective upon receipt.
- ASSIGNMENT.Except as otherwise provided, the Order and this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
- STATUS.Buyer and The Company are separate entities. Nothing in the Order or this Agreement shall be construed as creating an employer-employee, partnership, joint venture relationship or any other binding entity that would imply anything other than the parties are separate entities.
- COMPLIANCE WITH LAW.Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
- ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. PLEASE READ THIS ARBITRATION AGREEMENT (“ARBITRATION AGREEMENT”) CAREFULLY. IT AFFECTS YOUR RIGHTS, AND IS PARTY OF YOUR CONTRACT WITH UQONTROL. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All controversies, disputes, demands, counts, claims, or causes of action between you and uQontrol arising out of, under, or related to this Terms of Service, our privacy practices (including any action we take or authorize with respect to information about or provided by you), or uQontrol’ products and services shall be resolved exclusively on an individual basis through binding arbitration under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and to uQontrol, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods under the Terms of
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested A Notice to uQontrol should be sent to: uQontrol, Inc. 312 S. 1st Ave., Sandpoint Idaho 83864, United States. After the Notice is received, you and uQontrol may attempt to resolve the claim or dispute informally. If you and uQontrol do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our to uQontrol at the address above. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. Arbitration shall be initiated through JAMS, Inc. f/k/a Judicial Arbitration and Mediation Services (“JAMS”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this sectio If JAMS is not available to arbitration, the parties will agree to select an alternative ADR Provider. The rules of the ADR Provider will govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms of Service. The JAMS Comprehensive Arbitration Rules and Procedures governing the arbitration are available online at www.jamsadr.com (“JAMS Rules”). The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location Sandpoint, Idaho 83864, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If you initiate an arbitration in which you seek less than $500 in damages and comply with the Terms of Service, including the Notice Requirement, uQontrol shall reimburse you for your JAMS filing fee, and shall pay all administration and arbitrator fees up to a total amount of $500. If the Arbitrator grants you an award, uQontrol will reimburse your attorneys’ fees.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and uQontrol, and the dispute will not be consolidated with any other matters or joined with any other cases or The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms of Service. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and uQontrol.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY, instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event, any litigation should arise between you and uQontrol in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND UQONTROL WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.; Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with
- Emergency Equitable Relief. Notwithstanding this arbitration provision, either party may seek emergency equitable relief before such courts in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of such A request for interim measures shall not be deemed a waiver of the right to arbitrate.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree that such claims shall be exclusively brought (unless such courts do not have personal jurisdiction in the dispute) in the courts located in Sandpoint, Idaho.
- FORCE MAJEURE.Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.
- SURVIVAL.In the event, any provision of the Order or this Agreement is held by a competent jurisdiction to be contrary to the law, the remaining provisions of the Order or this Agreement will remain in full force and effect. All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver, waiver of jury trial and provisions which by their terms extend beyond the Term shall survive the termination of the Order and this Agreement.
Business Customer Owned Inventory
The Company may, from time to time, house materials or inventory owned by Customer (“Customer Materials”) at its facility (“The Company Facility”) in order for the Company to perform services for the Customer, and the Customer and the Company desire to agree to the terms and conditions upon which the Company will store such Customer Materials. Accordingly, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
- The Customer agrees to pay the storage and other fees associated with the Company’s storage, inventorying and warehousing of the Customer Materials (“Customer Materials Warehouse Storage Fees”).
- Upon the Company’s receipt of the Customer Materials, the Customer agrees that it shall bear all and insure against all risk of loss at all times while such the Customer Materials are located at the Company Facility or while such Customer Materials are under the direction and control of the Company. Unless caused by the gross negligence or willful misconduct of the Company, in no event shall the Company be liable for any loss or damage to the Customer Materials.
- In the event there is no order or de minimus activity related to the Customer Materials for a period of twelve (12) months or upon expiration or termination of this Agreement, the Company will use reasonable efforts to notify Customer of any such Customer Materials which remain under the Company’s direction or control and, unless otherwise agreed to in writing by both parties, the Customer shall accept C.O.D. return shipment of all such remaining Customer Materials. In the event such Customer Materials are returned to the Company, the Customer shall remain liable for all costs related to the shipment of such Customer Materials and the Company shall have the right to destroy, resell or otherwise dispose of such Customer Materials and Customer shall be liable for all costs and expenses related thereto, including but not limited to all costs of shipment, destruction, resale, enforcement of and collection under this Agreement, including reasonable attorneys’ fees.
- This Addendum shall remain in effect until such time as the Company is no longer in possession or control of any Customer Materials provided that either party may terminate this Addendum immediately for cause upon written notice, which notice will include a ten (10) business day opportunity to cure. Either party may terminate this Addendum for convenience upon sixty (60) days written notice to the other party.
The Company Owned Inventory
The Company may, from time to time, purchase materials and/or inventory on the Customer’s behalf (“The Company-Managed Inventory”) and such the Company-Managed Inventory shall be stored at the Company’s facility (“The Company Facility”) in order for the Company to perform services for Customer. Customer and the Company desire to agree to the terms and conditions upon which the Company will warehouse and store such the Company-Managed Inventory. Accordingly, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
- Customer agrees to pay the storage fees associated with the Company’s storage, management and inventorying of the Company-Managed Inventory (“The Company-Managed Inventory Warehouse Storage Fees”).
- In the event there is (a) a de minimus or no order activity related to the Company-Managed Inventory for a period of twelve (12) or more months; (b) upon the expiration or termination of this Addendum; or (c) the expiration of termination of the Agreement between the parties to which the Company-Managed Inventory is addressed or the subject of, the Company will use reasonable efforts to notify Customer of any such Company-Managed Inventory which remains under the Company’s possession, direction or control and, unless otherwise agreed to in writing by both parties, The Company shall invoice Customer for such Company-Managed Inventory and payment shall be due within thirty (30) days of the invoice date. For amounts owed which are more than thirty (30) days past due, the Company may charge Customer interest in the amount of one and a half percent (1 ½%) per month or the maximum rate permitted by law. Upon receipt of payment from Customer, Customer shall accept C.O.D. return shipment of all such remaining Company-Managed Inventory and shall be responsible for all other costs or expenses related to the return of such Company-Managed Inventory. Risk of loss of Company-Managed Inventory shall transfer to Customer upon shipment. In addition to all other remedies available to the Company, in the event that the Company does not receive full payment for Company-Managed Inventory within sixty (60) days of the invoice date, the Company shall have the right to destroy, resell or otherwise dispose of such Company-Managed Inventory and, in addition to the invoiced amount of Company-Managed Inventory, Customer shall be liable for all costs and expenses related thereto, including but not limited to all costs of shipment, destruction, resale, enforcement of and collection under this Agreement, including reasonable attorneys’ fees.
- This Addendum shall remain in effect until such time as the Company is no longer in possession or control of any Company-Managed Inventory provided that either party may terminate this Addendum immediately for cause upon written notice, which notice will include a ten (10) day opportunity to cure. Either party may terminate this Addendum for convenience upon sixty (60) days written notice to the other party.
- This Addendum constitutes and contains the entire agreement between the parties with respect to the storage, warehousing and inventorying of Company-Managed Inventory. The parties acknowledge and agree that to the extent there is a conflict between any terms in this Addendum and any terms contained in the storage, warehousing and inventory provisions related to Company-Managed Inventory contained in any other agreement executed by the parties, the terms related to such storage, warehousing and inventory of Company-Managed Inventory contained therein, shall be governed by this Addendum and the terms contained herein shall prevail.
How to get a refund (30 Day Money Back Guarantee)
We want you to be completely satisfied with your Qkey and Premium account, which is why we offer a 30-Day Money Back Guarantee on both the Qkey and your Premium account. If, for any reason, you’re not completely satisfied with your purchase, we’ll refund your purchase of your Qkey or the renewal of your Premium subscription within 30 days of purchase. Qkey must be in the original condition to qualify for a refund (there is a 20% restocking fee is applicable on all Qkeys that have been personalized)
Note: Your Qkey or Premium subscription cannot be refunded if it was purchased or renewed more than 30 days ago.
You used your credit card directly on the Qkey website
If you Purchased a Qkey, renewed or upgraded to a Premium within the last 30 days, please contact us directly to get a full refund. Make sure to provide us with the e-mail address you use to log in to Qkey.
You purchased Qkey at the Amazon or other online Store
Since payments are processed by Amazon or other online store, we cannot refund you directly because your purchase(s) were not processed by our services. We only receive the payment confirmation from Amazon or any other Online stores.
To ask for a refund directly to Amazon or the site of purchase, please ask for a refund from there and follow their procedures.
You purchased Qkey in-store at a retail location
Since payments are processed by a method other than online, we cannot refund you directly because your purchase(s) were not processed by our services.
Because those payments are processed independent of Qkey we cannot refund any payments for purchases directly because they are not processed by our services.
To ask for a refund directly to the point of sale and ask for a refund for there.
Date Last Revised: March 1, 2016
What Information does uQontrol collect?
Information You Provide. uQontrol collects information that you voluntarily provide on our Site, App and Services. For example:
When you create a uQontrol account, we ask you to provide an email address that will be used as your login. In addition, when you create a uQontrol account we ask you to select a “Master Password”. That Master Password is the basis for the encryption key used in protecting your Encrypted Sensitive Information (see below). This Master Password is not known to uQontrol and is stored on your Qkey and is not stored in any digital form unless you explicitly ask to do so. When you enable specific services, we may collect additional information that you knowingly provide.
Encrypted Sensitive Information:
In order to use the password manager and secure digital wallet you will enter certain information into the App on the Qkey, including highly sensitive information like names, addresses, phone numbers, identity information, credit card information, passwords, receipts for online transactions and secure notes (“Encrypted Sensitive Information”). The Encrypted Sensitive Information is encrypted locally on your Qkey using strong encryption and none of it is viewable to uQontrol in unencrypted form. If you choose to synchronize your Encrypted Sensitive Information with more than one device (each an “Authorized Device” and the Service, the “Sync Function”), the Services are designed to transmit and store the Encrypted Sensitive Information through the uQontrol cloud using strong encryption and in a manner, that UQontrol will not be able to read.
When you pay for certain services (e.g. Premium or Business Services) we will collect all information necessary to complete the transaction, including your name and billing address. Other billing information necessary to complete the transaction, like your credit card information which is collected by our payment processor, but is not made available to uQontrol.
Anonymous Usage Information:
As described in more detail in the section headed Information Collected Via Technology, during your use of our Services, we automatically collect certain information and technical data about the use of our Services. This information is anonymized and we cannot link this anonymized usage information with a person.
If you provide us feedback or send us an email, we will collect your email address as well as the content of your email in order to communicate with you and send you a reply.
We also collect other types of information where: (a) you provide it to us voluntarily, for example, if you contact us regarding support for the Services or (b) in the manner disclosed by us at the time that such information is being collected. UPDATES
Collected via Technology.
uQontrol collects certain forms of information
automatically. For example:
- Log Files. As is true of most digital services, we gather certain information automatically and store it in log files. This information may include IP addresses, browser type, Internet service provider (“ISP”), referring/exit pages, operating system, date/time stamp, clickstream data, your mobile device’s connection logs, operating language, operating system country, device identifiers, location data, and the telephone number. We use this information to analyze trends, administer the Site, track users’ movements around the Site, gather demographic information about our user base as a whole, better tailor our Services to our users’ needs and for the purposes of fraud detection and authentication.
Information Collected from You About Others.
If you invite someone to create an account through the Services, uQontrol will store the email address of the person you have invited and the message you have sent, in order to send an email and follow up with the third party. We rely upon you to obtain whatever consents from the third party that may be required by law to allow us to access and upload the third party’s names and email addresses as required above. You or the third party may contact us at [email protected] to request removal of this information from our database.
All of the information that is identified as collected in this Section, including the Registration Information, Encrypted Sensitive Information, Billing Information, Anonymous Information and information collected from others is referred to as “Information”.
How does uQontrol use your Information?
In general, uQontrol uses your Information to either respond to requests that you make, or to aid
us in serving you better including in the following ways: UPDATES
- facilitate the creation of and to secure your account on our network;
- provide you the Services you request;
- identify you as a user in our system and to perform fraud detection and authentication;
- improve the quality and experience when you interact with our Site and Services;
- send you administrative email notifications, such as security or support and maintenance
- respond to your inquiries and other requests and
- send newsletters, surveys, offers and other promotional materials related to our Services
and for other marketing purposes of UQontrol.
Creation of Anonymous Information.
If we have any information that is identifiable with a particular person, we may create Anonymous Information records from such Information by excluding information that makes the information personally identifiable to you. We reserve the right to use Anonymous Information for any purpose and disclose Anonymous Information to third parties. “Anonymous Information” means information that does not, by itself, permit the identification of individual natural persons.
How uQontrol shares the information it collects?
uQontrol discloses your Information as described below and as described elsewhere in this
If you create a Sharing Group, uQontrol will share some or all of your Encrypted Sensitive Information (collectively, “Shared Information” with the Recipients you designate in your Sharing Group. Shared Information will always be shared with all Recipients in a Sharing Group; however, you may restrict or customize access to Shared Information by designating which Recipients are also granted admin privileges over your Shared Information. You may revoke a Recipient’s access to your Shared Information at any time.
Our Services enable you to designate emergency contacts who we will contact in the event you are unable to access your account or information therein. If you set an emergency contact, then, upon satisfaction of any conditions you have established as a pre-condition to the release of your account credentials, uQontrol will disclose such information to the designated emergency contact.
In order to make it less likely that someone will perpetrate a fraud on you, we may provide some portion of the Information, including some Encrypted Sensitive Information, to the financial institution that issued your credit card or that operates your credit card network (collectively, “Credit Card Companies”). We provide such Information to the Credit Card Companies solely for the purpose of assisting them in preventing fraud. We make this information available to Credit Card Companies using a public-private key so it remains unreadable to uQontrol and its Service Providers.
located at www.Qkey.com/legal
How secure is your Information?
The security of the Information that you enter in the uQontrol App is extremely important to uQontrol. This is why uQontrol implements a variety of security measures, including AES 256 bit encryption designed to prevent unauthorized access, alteration, and use of your Encrypted Sensitive Information. While uQontrol has gone to great lengths to protect your Information, no method of transmission over the Internet, or method of electronic storage, is 100% secure; therefore, uQontrol cannot guarantee its absolute security. In addition, the security of your Information also depends on how you use the uQontrol App and Services and protect the Master Password that enables you to access your uQontrol account and decrypt your Encrypted Sensitive Information. We therefore strongly recommend that you carefully read and implement the uQontrol security guidelines available here: www.Qkey.com/legal
How can you access and manage your Information?
Changing Your Information.
You can access and rectify your Information directly on the uQontrol App. For any question or concern you may have with respect to your Information, you can contact: [email protected]
With your consent, we will periodically send you free newsletters and emails that directly promote the use of our Site and Services, including important best practices and guidance on how to optimize your use of the uQontrol App. When you receive newsletters and promotional communications from us, you may indicate a preference to stop receiving further communications from us and you will have the opportunity to “opt-out” by following the unsubscribe instructions provided in the email you receive. You may also send us an email at the following address: [email protected]. Despite your indicated email preferences, we may send you service related communications, including notices of any updates to our Terms of
You can stop all collection of information by the App by uninstalling the App. You may use the standard uninstall processes as may be available as part of your mobile device or via the mobile application marketplace or network.
Questions; Contacting UQontrol; Reporting Violations.
312 S. First Ave
Sandpoint, ID 83864
End User License Agreement (EULA) and
Terms of Service
(LAST UPDATED: March 1, 2017)
Welcome to uQontrol, uQontrol Inc., a Nevada corporation, “uQontrol”, “we”, “us”, or “our”) operates www.Qkey.com (the “Site”) and provides our users (each user, “you”) with the uQontrol software application supports interoperability when installed in Qkey and authorized digital devices such as PC, Servers, VPN, Cloud and other peripheral digital devices (i.e. Internet of Things “IoT”), is a web assistant designed to simplify and expedite your experience on the web by holding personal data in a secure vault and actively using it to perform online transactional and navigational processes (the “App”), as well as a number of related services enabled via the Qkey, Sites, Apps etc. (collectively, the “Services”). The following terms and conditions (the “Terms of Service”) form a binding agreement between you and us regarding your use of the Qkey Sites www.qkey.com/legal, Apps and Services.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE OR TO THE UQONTROL SOFTWARE APPLICATION WILL BE GOVERNED BY AND UNDER THE LAWS OF THE STATE OF IDAHO, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING THE SITE, DOWNLOADING THE APP, OR USING THE SERVICES IN ANY WAY YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO ALL OF THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS SITE, APP OR SERVICES. YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATIONS IN ORDER TO ENTER INTO THIS AGREEMENT, TO CREATE OTHER RECORDS AND TO THE ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS BETWEEN YOU AND UQONTROL WITH RESPECT TO THIS AGREEMENT, AS FURTHER DETAILED IN SECTION 16. THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT UQONTROL’S THEN-CURRENT FEE FOR SUCH SERVICES, UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 8(D) BELOW.
1. REGISTRATION and ACTIVATION
a. Accounts. To use our Services, you must download the App (unless the App has been pre-installed on your Qkey, computer, mobile device or other digital device), register and activate your Qkey online to set up an account (an “Account”) with us by providing your email address (the “Account Email”), your cell phone number (the “Account Phone Number”) creating a master password (the “Master Password”), and a payment card to charge $1.00 verifying identity to establish and maintain the Account, this is referred to collectively as (your “Account Credentials”). Your Account may be for a free version, a “freemium version” (e.g., temporary access to premium features for free) or for a premium version. Each version may have different features enabled and you will only be enabled to use the features applicable to the version you have registered for. Except as provided in Sections 3(d) and 5, you may not transfer or share your Account Credentials with any third parties, and you are solely responsible for maintaining the confidentiality of your Account Credentials. You acknowledge and agree that we rely on Account Credentials to know whether users using our Services are authorized to do so. You agree to be responsible for any act or omission of any users that access the Site or Services under Your Account Credentials.
b. Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (“Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least eighteen (18) years old, and; (2) of legal age to form a binding contract, and; (3) have personal payment method (e.g. PayPal, credit or debit card) and able and willing to execute a payment transaction online, and; (4) not a person barred from using the Site, App or Services (collectively, the “uQontrol Properties”) under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict, as appropriate, use by minors, and you will accept full responsibility for any authorized or unauthorized use of the uQontrol Properties by minors. You may not share your Account or Master Password with anyone, and you agree to (1) notify uQontrol immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or uQontrol has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, uQontrol has the right to suspend or terminate your Account and refuse any and all current or future use of the uQontrol Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.
2. OUR APP (Application)
a. License. Subject to the terms of these Terms of Service, uQontrol grants you a personal, limited, non-exclusive, revocable, non-sub-licensable, and non-transferable license to download and install the App in object code format, on one or more computer(s), mobile device(s) and/or other authorized device approved by uQontrol (e.g. Qkey) solely for your own personal or internal business purposes. This license does not entitle you to receive from uQontrol hard-copy documentation, support, telephone assistance, or enhancements or updates to the App, though we may provide any of the foregoing in our sole discretion. In addition to the other restrictions set forth herein. You may not incorporate, integrate or otherwise include the App or any portion thereof into any other software, program or product. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Source Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (iii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. As well, you will also abide by all “Usage Rules” and “Terms of Service” applicable when accessing any App library services both now and in the future when downloading and using the uQontrol App(s).
b. Updates. You understand that the uQontrol Properties are evolving. As a result, uQontrol may require you to accept updates to the uQontrol Properties that you have installed on your Qkey, computer, mobile device and or other peripheral digital devices. You acknowledge and agree that uQontrol may update the uQontrol Properties with or without notifying you.
c. Dependencies. The uQontrol Properties are designed to work with a number of third party, devices, mobile applications and other applications, however, the continued compatibility of uQontrol with a specific application is partially dependent on that third party. In order to maintain compatibility, you may need to update uQontrol from time-to-time and/or you may need to update third-party, to ensure compatibility. UQontrol cannot promise that all currently supported third party applications will always be compatible with uQontrol.
d. No Duty to Correct Errors. You acknowledge and agree that uQontrol has no obligation to correct any defects or errors with the uQontrol Properties or provide any support services, regardless of whether you inform uQontrol of such defects or errors or uQontrol otherwise is, or becomes aware of, such defects or errors.
3. SPECIAL FEATURES AND FUNCTIONS. In connection with our free or paid subscription services, uQontrol offers features that are convenient, save you time and dramatically increases the security of your data. The availability of certain features and restrictions on use in connection with our free and paid subscription services can be found at: https://www.Qkey.com/premium
In connection with certain features, you agree as follows:
a. Emergency Contacts. You may designate an individual as your emergency contact and set parameters around release of your Third-Party Account Information, including a waiting period after we receive a request from an emergency contact for you to respond to such request. You agree that provided the parameters for release are met, uQontrol may release your Third-Party Account Information to any person you designate as an emergency contact and you release uQontrol from any and all liability and waive any claim you may have as a result of or in connection with such release. (Do we have any process or policy)
b. Password Manager. uQontrol Password Manager allows you keep track of your passwords in a single location. You may automatically import passwords into your password vault and in many cases, be able to automatically change your passwords with a single click via the uQontrol app. You may determine and control the specific passwords used on individual destination websites (and select third party downloadable mobile apps) stored in your password vault; however, you can alternatively use the automated password generator built into the uQontrol service (the “Password Generator”) to create passwords leveraging what we know about security. Complex passwords we create via the Password Generator may be less likely to be hacked than the simple passwords most people ordinarily use. Still, we make no guarantees regarding the security of any passwords that we create. We also make no guarantees that the uQontrol Password Manager and Password Generator will properly change the credentials in connection with every website (or third party mobile app) or that you will be able to use Password Manager or Password Changer in connection with every site (or third party mobile app). uQontrol is not liable for your inability to use any site (or third party mobile app) resulting from your use of the uQontrol Application.
c. Digital Wallet. With uQontrol’ digital wallet you can store all your payment types (e.g., credit card, debit card, bank account, PayPal account, etc.) in a single location and select the payment type you want to apply before any checkout (the uQontrol “Smart Wallet” or “Digital Wallet”). You are solely responsible for ensuring that the information we have about your cards is accurate and up to date, and that your use of uQontrol complies with the terms and conditions that govern your cards that you store in uQontrol. To be clear, all the repercussions of conducting a transaction using a card in connection with the uQontrol Smart Wallet will still apply. You are responsible for all charges or debits to your cards that result from transactions made using the uQontrol Smart Wallet, we do not warrant that your cards are in good standing or that card issuer will honor any requested transaction and if you need to resolve any transaction issue, you should contact the merchant or the financial institution that issued your card to you. We are not liable for any transactions that are made, or not made in the unlikely event that you are not able to conclude a transaction, using the uQontrol Smart Wallet.
d. Sharing Information. uQontrol may enable you to share access credentials for your third- party accounts, along with secure notes and comments (collectively, access credentials and related notes and comments are referred to as “Third Party Account Information”) with other users of the Services that you designate (each, a “Recipient”). By sharing credentials or secure notes, you are authorizing uQontrol to share your Third-Party Account Information with the Recipients. By granting certain admin privileges to a Recipient, you may also authorize uQontrol to allow that designated Recipient to re-share or update your Third- Party Account Information. You are responsible for granting or revoking a Recipient’s access to your Third-Party Account Information at all times. You acknowledge and agree that uQontrol has no control over any Recipient, and that uQontrol will not be liable for and you hereby waive any claim you may have arising from the actions of any Recipient.
e. Stored Data. You may select certain types of data you wish for the App to store on your Qkey computer(s), mobile device(s) and or other peripheral devices, including your addresses, payment information and other personal information (“Stored Data”). The Stored Data is stored using strong encryption. Still, uQontrol cannot and does not guarantee the security, completeness, integrity or accuracy of any Stored Data or that the Stored Data will not be corrupted or lost. You acknowledge that uQontrol does not screen any Stored Data. You are solely responsible for, and uQontrol recommends that you confirm the accuracy of the Stored Data that is inputted onto a web page by the App each and every time you use the App.
f. Sync Function. The uQontrol Sync Function can serve many important functions. One, your Stored Data will be uploaded to and synchronized with our servers through the Services (“Synced Data”) in accordance with our documentation and standard policies and procedures so that your Stored Data is backed up in the uQontrol cloud. Another but not limited to, the sync function enables you to synchronize your Synched Data so that you can access and use it on the Qkey, computer(s), mobile device(s) and or other peripheral devices you have authenticated and synced to your Account (each, a “Synched Device”). You agree and understand that you may only store Synched Data on Synched Devices for your personal or internal business use and not for the benefit of third parties. You are solely responsible for all activities occurring with any and all Synched Device, and for specifying which devices are designated as Synched Devices. Your Synched Data may not be available or restorable if: (a) your computer is unable to access the internet, your Qkey or uQontrol servers; (b) you fail to follow uQontrol’ technical requirements, including upgrading the version of your App as required; (c) you uninstall the App, or (d) you forget your master password to log in to your Account. We do not warrant that your data will not be corrupted or lost and we will not have any liability associated with the loss or corruption of your Synced Data or any damage to your Synched Devices. We cannot sync the Synched Data if you sign up for multiple accounts.
g. Secure Account Backup. Secure Account Backup is like the Sync Function in that we may also sync a copy of you’re the Stored Data on your Qkey, on local PC, or remote servers, so there is a back-up. Like with the Synched Data, the backed-up data may not be available or restorable if: (a) you fail to follow uQontrol’ technical requirements, including upgrading the version of your App as required; (b) you uninstall the App (e.g., you need the App installed to get the Stored Data), or (c) you forget your master password to log in to your Account.
i. uQontrol for Business Version. In the event that you are purchasing a uQontrol Business license (“Business Version”), then, you agree to the following:
i. You warrant that you have the authority to act on behalf of (and bind) any person or organization for which you are registering the Business Version to these Terms of Service (the “Business”) and the Business agrees that it is bound by the terms of this Agreement;
ii. Each person that you provide with a uQontrol account pursuant to your Business Version license will be provided with a copy of these Terms of Service; and
iii. You or the people or organization(s) that you have granted access to your Business Version (“Authorized Users”) (and not uQontrol) will be responsible for managing the enablement of Account Credentials for each Authorized User and you agree to pay uQontrol an annual license fee for each account established pursuant to the Business Version.
iv. The Business is responsible for the acts and omissions of each Authorized User and any breach of this Agreement by the Business’s Authorized User will be deemed a breach by the Business.
v. The Business is responsible to ensure that Authorized Users maintain the confidentiality and security of the Account Credentials.
a. uQontrol Properties. Except with respect to Account Email, Stored Data and Synched Data, you agree that uQontrol and its licensors own all rights, title and interest in the uQontrol Properties, including all content, data, information, text, software, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the uQontrol Properties (“uQontrol Content”). You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the uQontrol Properties.
b. Your Content. uQontrol does not claim ownership of any content, data, information, or other materials you post, upload to, or otherwise make available on the uQontrol Properties, including your Account Email, Stored Data and Synched Data (collectively, “Your Content”). You grant us a non-exclusive, royalty-free, fully paid, fully sub-licensable, transferable, worldwide license, to reproduce, digitally transmit and use Your Content for the purpose of providing you the Services.
c. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of uQontrol.
5. GENERAL RULES OF USER CONDUCT. Your use or and access to the uQontrol Properties is subject to your compliance with these Terms of Service, including this Section 5. Except as expressly permitted herein, you agree not to, and represent and warrant that you will not:
o License, sell, rent, lease, reproduce, resell, transfer, assign, distribute host or otherwise commercially exploit the uQontrol Properties or any portion of the uQontrol Properties
o Conduct or promote any illegal activities while using the uQontrol Properties;
o Upload, distribute or print any content to the uQontrol Properties that is or may be harmful to minors;
o Upload or make available any of Your Content that violates the rights of any third party, including any third party’s intellectual property rights;
o Reverse engineer, disassemble, decompile, or translate or jeopardize the correct functioning of ALL uQontrol Properties including but not limit to Qkey, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the uQontrol Properties;
o Attempt to gain access to secured portions of the uQontrol Properties to which you do not possess access rights, including the Stored Data or Synced Data of any other uQontrol user;
o Upload or transmit any form of virus, worm, Trojan horse, or other malicious code to the uQontrol Properties;
o Use any automatic, electronic or manual process to harvest information from the uQontrol Properties (including without limitation robots, spiders or scripts);
o Interfere in any way with the proper functioning of the uQontrol Properties or interfere with or disrupt any servers or networks connected to the uQontrol Properties, or disobey any requirements, procedures, policies or regulations of networks connected to the uQontrol Properties;
o Institute, assist, or become involved in any type of attack, including, without limitation, distribution of a virus, denial of service attacks upon the uQontrol Properties, or other attempts to disrupt the uQontrol Properties or any other person’s use or enjoyment of the uQontrol Properties;
o Attempt to probe, scan, or test the vulnerability of any uQontrol system or network, or breach any security or authentication measures;
o Disrupt or interfere with the security of, or otherwise cause harm to, the uQontrol Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through the uQontrol Properties or any affiliated or linked sites;
o Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or
o Mirror or frame the Site or any content, place pop-up windows over its pages, or otherwise affect the display of its pages.
6. FEEDBACK. You agree that the submission by you of any ideas, thoughts, criticisms, suggested improvements or other feedback related to uQontrol, or the uQontrol Properties (collectively “Feedback”), is at your own risk and that uQontrol has no obligation (including without limitation any obligation of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant uQontrol a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same.
7. APP STORES. You acknowledge and agree that the availability of the App is dependent on the third party from whom you received the App license, e.g., the Apple App Store, Google Play Store and all other independent app service providers (“App Store”). You acknowledge that the Terms of Service are between you and uQontrol and not with the App Store. uQontrol, not the App Store, is solely responsible for the uQontrol Properties, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the uQontrol Properties, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the uQontrol Properties, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms of Service and will have the right to enforce them.
8. FEES AND PURCHASE TERMS
a. Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide uQontrol with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or other payment provider (such as PayPal) (“Payment Provider”), or in the case of large business clients, subject to uQontrol’ approval, at its sole discretion, purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing uQontrol with your credit card number and associated payment information, you agree that uQontrol is authorized to immediately invoice and charge your Account for all fees and charges due and payable to uQontrol hereunder and that no additional notice or consent is required. You agree that uQontrol may securely store your credit card or Payment Provider details for future payment processing and you agree to immediately notify uQontrol of any change in your billing address and/or the credit card and/or other payment account (e.g., PayPal) used for payment hereunder. uQontrol reserves the right at any time to change its prices and billing methods, either immediately upon posting on the uQontrol Properties or by e-mail delivery to you.
b. Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your subscription package (each, a “Service Commencement Date”), irrespective of length of initial subscription (annual or otherwise). Except as set forth in the Terms, all fees for the Services are non- refundable. No contract will exist between you and uQontrol for the Services until uQontrol accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
c. Taxes. uQontrol’ fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to uQontrol, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify uQontrol for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that uQontrol is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose sales or use tax.
d. AUTOMATIC RENEWAL. YOUR SUBSCRIPTION WILL CONTINUE UNTIL YOU TERMINATE YOUR SUBSCRIPTION IN ACCORDANCE WITH THE TERMS OF SERVICE. AFTER YOUR INITIAL SUBSCRIPTION PERIOD, AND AGAIN AFTER ANY SUBSEQUENT SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL AUTOMATICALLY COMMENCE ON THE FIRST DAY FOLLOWING THE END OF SUCH PERIOD (EACH A “RENEWAL COMMENCEMENT DATE”) AND CONTINUE FOR AN ADDITIONAL EQUIVALENT PERIOD, AT UQONTROL’S THEN-CURRENT PRICE FOR SUCH SUBSCRIPTION. YOU AGREE THAT YOUR ACCOUNT WILL BE SUBJECT TO THIS AUTOMATIC RENEWAL FEATURE UNLESS YOU CANCEL YOUR SUBSCRIPTION AT ANY TIME PRIOR TO THE RENEWAL COMMENCEMENT DATE BY LOGGING INTO AND GOING TO THE “CHANGE/CANCEL MEMBERSHIP” PAGE OF YOUR “ACCOUNT SETTINGS” PAGE OR BY CANCELLING WITHIN 30 DAYS OF RENEWAL. IF YOU DO NOT WISH YOUR ACCOUNT TO RENEW AUTOMATICALLY, OR IF YOU WANT TO CHANGE OR TERMINATE YOUR SUBSCRIPTION, YOU CAN FOLLOW THE,
DIRECTIONS SET FORTH HERE:
www.qkey.com/premium IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM; YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT TERM EXPIRES. HOWEVER, YOU WILL NOT BE ELIGIBLE FOR A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD, UNLESS YOU CANCEL WITHIN 30-DAYS OF THE SERVICE COMMENCEMENT DATE OR A SUBSEQUENT RENEWAL COMMENCEMENT DATE, IN WHICH CASE YOU WILL BE ELIGIBLE FOR A FULL REFUND OF THE MOST RECENT SERVICE SUBSCRIPTION FEE PURSUANT TO SECTION 9(B) BELOW. IF YOU WISH TO RECEIVE A REFUND FOR A PAYMENT FOR A PREMIUM SUBSCRIPTION TO UQONTROL IN ACCORDANCE WITH THESE TERMS, YOU CAN FOLLOW THE,
DIRECTIONS SET FORTH HERE:
www.qkey.com/support BY SUBSCRIBING, YOU AUTHORIZE UQONTROL TO CHARGE YOUR PAYMENT PROVIDER NOW, AND AGAIN AT THE BEGINNING OF ANY SUBSEQUENT SUBSCRIPTION PERIOD. UPON RENEWAL OF YOUR SUBSCRIPTION, IF UQONTROL DOES NOT RECEIVE PAYMENT FROM YOUR PAYMENT PROVIDER, (I) YOU AGREE TO PAY ALL AMOUNTS DUE ON YOUR ACCOUNT UPON DEMAND, AND/OR (II) YOU AGREE THAT UQONTROL MAY EITHER TERMINATE OR SUSPEND YOUR SUBSCRIPTION AND CONTINUE TO ATTEMPT TO CHARGE YOUR PAYMENT PROVIDER UNTIL PAYMENT IS RECEIVED (UPON RECEIPT OF PAYMENT, YOUR ACCOUNT WILL BE ACTIVATED AND FOR PURPOSES OF AUTOMATIC RENEWAL, YOUR NEW SUBSCRIPTION COMMITMENT PERIOD WILL BEGIN AS OF THE DAY PAYMENT WAS RECEIVED).
e. Free Trials and Other Promotions. Certain uQontrol services are available at no cost as set forth at https://www.uQontrol.com/premium. In addition to these free services, we may provide that certain premium features or functions (each a “Trial Service”) be made available to you on a free trial basis for a limited period of time. At the end of the trial period, your use of that Trial Service will expire and any further use of the Trial Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription prior to the expiry of a free trial period, please contact uQontrol to have the charges reversed.
f. Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: [email protected]
a. Term. These Terms of Service will commence as of the date you accept them (as described in the preamble above) and remain in full force and effect while you use the uQontrol Properties, unless terminated earlier in accordance with the terms herein.
b. Termination of Services by uQontrol. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case uQontrol will refund your Service Subscription Fee, if already paid pursuant to Section 7(a) or 7(b), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms of Service, or if uQontrol is required to do so by law (e.g., where the provision of the Site, the App or the Services is, or becomes, unlawful), uQontrol has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in uQontrol’ sole discretion and that uQontrol shall not be liable to you or any third party for any termination of your Account.
c. Termination of Services by You. If you want to terminate the Services provided by uQontrol, you may do so by (a) notifying uQontrol at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to www.uqontrol.com/support
d. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service (unless you re-subscribe). Termination of all Services will also include deletion of any of your Account Credentials, Synched Data and all related information, files and content associated with or inside your Account. Please note that any termination of the Services will not delete any Stored Data on your device and/or computer, and you are solely responsible for the deletion of such Stored Data. uQontrol will not have any liability whatsoever to you for any suspension or termination, including deletion of your Synched Data. All provisions of these Terms of Service which by their nature should survive, shall survive termination of Services, including, without limitation, ownership provisions, warranty disclaimers and limitation of liability.
e. Moving from Premium Version back to Free Version. You may elect to terminate your premium subscription to the uQontrol Properties and continue to use the free version (if it is still offered by uQontrol at that time). If you do, your Account Credentials, Synched Data and all related information, files and content associated with or inside your Account will remain available to you, but you may not have access to certain features that are only available to premium subscribers.
a. Violations. If uQontrol becomes aware of any possible violations by you of the Terms of Service, uQontrol reserves the right to investigate such violations. If, as a result of the investigation, uQontrol believes that criminal activity has occurred, uQontrol reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. uQontrol is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the uQontrol Properties, including Synched Data, in uQontrol’ possession in connection with your use of the uQontrol Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms of Service, (3) respond to any claims that Synched Data violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of uQontrol, users of the uQontrol Properties or the public, and all enforcement or other government officials, as uQontrol in its sole discretion believes to be necessary or appropriate.
b. Breach. In the event that uQontrol determines, in its sole discretion, that you have breached any portion of the Terms of Service, or have otherwise demonstrated conduct inappropriate for the uQontrol Properties, uQontrol reserves the right to:
i. Warn you via e-mail (to any e-mail address you have provided to uQontrol) that you have violated the Terms of Service;
ii. Delete any Synched Data provided by you or your agent(s) to the uQontrol Properties;
iii. Discontinue your registration(s) with the any of the uQontrol Properties, including any Services;
iv. Discontinue your subscription to any Services;
v. Notify and/or send Synched Data to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
vi. Pursue any other action which uQontrol deems to be appropriate.
c. No Subsequent Registration. If your registration(s) with or ability to access the uQontrol Properties is discontinued by uQontrol due to your violation of any portion of the Terms of Service, then you agree that you shall not attempt to re-register with or access the uQontrol Properties through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those uQontrol Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, uQontrol reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
11. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE UQONTROL PROPERTIES IS AT YOUR SOLE RISK. THE UQONTROL PROPERTIES ARE PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. UQONTROL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION. WE MAKE NO WARRANTY THAT THE UQONTROL PROPERTIES WILL MEET YOUR REQUIREMENTS, OR THAT THE UQONTROL PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE UQONTROL PROPERTIES, OR THAT DEFECTS IN THE UQONTROL PROPERTIES CAN OR WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE UQONTROL PROPERTIES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. NO CONTENT, ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE UQONTROL PROPERTIES, OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. WE DO NOT WARRANT THAT YOUR STORED DATA AND SYNCED DATA WILL BE SECURE, WILL NOT BE CORRUPTED OR WILL NOT BE LOST.
12. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO AND USE OF THE UQONTROL PROPERTIES PURSUANT TO THE LIMITATIONS OF OUR LIABILITY SET FORTH HEREIN. YOU UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL UQONTROL OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS (COLLECTIVELY, “UQONTROL PARTIES”) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE UQONTROL PROPERTIES, OR, DAMAGES OR COSTS DUE TO LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RESULTING FROM: (1) THE USE OR INABILITY TO USE THE UQONTROL PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE UQONTROL PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE UQONTROL PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE UQONTROL PROPERTIES WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR ANY OTHER LEGAL THEORY. UNDER NO CIRCUMSTANCES WILL THE UQONTROL PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY UQONTROL AS A RESULT OF YOUR USE OF THE UQONTROL PROPERTIES IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSET A CLAIM. IF YOU HAVE NOT PAID UQONTROL ANY AMOUNTS IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, UQONTROL’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100). IN NO EVENT WILL THE UQONTROL PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY IN CONNECTION WITH ANY ACT OR OMISSION OF ANY USER OF THE UQONTROL PROPERTIES. NOTWITHSTANDING THE FOREGOING, UQONTROL DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A UQONTROL PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13. FORCE MAJEURE. Under no circumstances will uQontrol or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties.
14. INDEMNIFICATION. You agree to indemnify, defend and hold harmless the uQontrol Parties, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from: (a) your use of the uQontrol Properties; (b) any of your Stored Data or Synched Data; (c) your violation of these Terms of Service; or (d) your violation of any rights of any other person or entity. This provision does not require you to indemnify any of the uQontrol Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website, App or any Services provided hereunder.
15. THIRD PARTY CONTENT AND OTHER WEBSITES. Content from advertisers and other third parties may be made available to you through the uQontrol Properties. uQontrol does not have any control over any such content, and therefore will not be responsible or liable for any such content. The uQontrol Properties may also contain links to websites not operated by uQontrol. When you click on a link to a third-party website or ad, we will not warn you that you have left the uQontrol Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. uQontrol provides these third-party websites and ads only as a convenience and does not monitor, review, approve, endorse, warrant, or make any representations with respect to any third-party websites and ads, or their content, products, or services. You use all links in third party websites and ads at your own risk.
16. ELECTRONIC COMMUNICATIONS. The communications between you and uQontrol use electronic means, whether you visit the uQontrol Properties or send uQontrol emails, or whether uQontrol posts notices on the uQontrol Properties or communicates with you via email. For contractual purposes, you (i) consent to receive communications from uQontrol in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Your further consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may also receive a copy of these Terms of Service by accessing this Site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below, with the understanding that you will continue to receive administrative and legally required Communications. If you withdraw your consent, from that time forward, you must stop using the uQontrol Properties. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
17. GENERAL TERMS. You are responsible for compliance with all applicable laws. THE TERMS OF SERVICE AND THE RELATIONSHIP BETWEEN YOU AND UQONTROL WILL BE GOVERNED BY THE LAWS OF THE STATE OF IDAHO, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A DIFFERENT COUNTRY OR STATE. YOU CONSENT TO PERSONAL JURISDICTION AND VENUE IN, AND AGREE TO SERVICE OF PROCESS ISSUED OR AUTHORIZED BY, ANY COURT LOCATED IN THE STATE OF IDAHO, UNITED STATES. These Terms of Service are personal to you, and you may not transfer, assign or delegate your right and/or duties under these Terms of Service to anyone else and any attempted assignment or delegation is void. Any delay or failure to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. These Terms of Service constitute the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If any part or parts of this Agreement is found to be invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remainder of these Terms of Service will continue in full force and effect.
18. GOVERNMENT USERS. Each of the components that constitute the App or any other software related to the Services and its related documentation is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the App and any other software component of the Services and any documentation provided therewith with only those rights set forth in this Agreement.
19. NOTICE. We may give notice to you by email, a posting on the Site, or other reasonable means. You must give notice to us in writing via email to [email protected] or as otherwise expressly provided. Please report any violations of these Terms of Service to mailto:[email protected]
20. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. PLEASE READ THIS ARBITRATION AGREEMENT (“ARBITRATION AGREEMENT”) CAREFULLY. IT AFFECTS YOUR RIGHTS, AND IS PARTY OF YOUR CONTRACT WITH UQONTROL. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
a. Applicability of Arbitration Agreement. All controversies, disputes, demands, counts, claims, or causes of action between you and uQontrol arising out of, under, or related to this Terms of Service, our privacy practices (including any action we take or authorize with respect to information about or provided by you), or uQontrol’ products and services shall be resolved exclusively on an individual basis through binding arbitration under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and to uQontrol, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods under the Terms of Service.
b. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to uQontrol should be sent to: uQontrol, Inc. 312 S. 1st Ave., Sandpoint Idaho 83864, United States. After the Notice is received, you and uQontrol may attempt to resolve the claim or dispute informally. If you and uQontrol do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
c. Arbitration Rules. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our to uQontrol at the address above. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. Arbitration shall be initiated through JAMS, Inc. f/k/a Judicial Arbitration and Mediation Services (“JAMS”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitration, the parties will agree to select an alternative ADR Provider. The rules of the ADR Provider will govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms of Service. The JAMS Comprehensive Arbitration Rules and Procedures governing the arbitration are available online at www.jamsadr.com (“JAMS Rules”). The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location in Sandpoint, Idaho 83864, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If you initiate an arbitration in which you seek less than $500 in damages and comply with the Terms of Service, including the Notice Requirement, uQontrol shall reimburse you for your JAMS filing fee, and shall pay all administration and arbitrator fees up to a total amount of $500. If the Arbitrator grants you an award, uQontrol will reimburse your attorneys’ fees.
d. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
e. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and uQontrol, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms of Service. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and uQontrol.
j. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY, instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event, any litigation should arise between you and uQontrol in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND UQONTROL WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
k. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.; Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
l. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
m. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with uQontrol.
o. Emergency Equitable Relief. Notwithstanding this arbitration provision, either party may seek emergency equitable relief before such courts in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of such courts. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
p. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree that such claims shall be exclusively brought (unless such courts do not have personal jurisdiction in the dispute) in the courts located in Sandpoint, Idaho.
21. EXPORT CONTROL. You may not use, export, import, or transfer the uQontrol Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the uQontrol Properties, and any other applicable laws. In particular, but without limitation, the uQontrol Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the uQontrol Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the uQontrol Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by uQontrol are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the UQontrol products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
22. CHANGES TO THIS AGREEMENT. This Terms of Service agreement is subject to occasional revision. When changes are made, uQontrol will make a new copy of the Terms of Service available at the Site and within the App, and will also update the “Last Updated” date at the bottom of the Terms of Service. If we make any material changes to it, we will notify you by sending you an e-mail to the last e-mail address you provided to us. Any changes to this Terms of Service Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you or, thirty (30) calendar days following our posting of notice of the changes. Any changes to the Terms of Service will be effective immediately for new users of the uQontrol Properties. Please note that at all times you are responsible for updating your email address with us. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Services following notice of such changes shall indicate your agreement to be bound by the terms and conditions of such changes. If you do not agree to any change(s) after receiving notice of such change(s), you shall stop using the uQontrol Properties. PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS OF SERVICE.
Country specific provisions
If you are a resident of a country within the European Economic Area, the above uQontrol Terms of Service apply to you as amended by the following provisions:
1. In the preamble of the uQontrol Terms of Service, the last sentence of the second paragraph is removed.
2. In Section 5 of the uQontrol Terms of Service, the prohibition in the fifth bullet point without prejudice to the rights afforded to you, if any, is replaced by the mandatory legal provisions applying in your jurisdiction, and relating to the reverse engineering of software for interoperability purposes.
3. For individual consumers who are registered users of uQontrol in the EU, the first sentence of Section 8(c) shall be replaced with the following text: “uQontrol’ fees are inclusive of any applicable Sales Taxes.”
4. Notwithstanding anything to the contrary in uQontrol Terms of Service, uQontrol warrants that the App will function in accordance with its documentation, for a period of one year as from your first installation of the App. If it fails to do so, uQontrol will make commercially reasonable efforts to repair the App.
5. Notwithstanding the provisions of Section 16 of the uQontrol Terms of Service, if you are a resident of France, the Terms of Service and the relationship between you and uQontrol will be governed by the laws of France.
6. Section 17 of the uQontrol Terms of Service does not apply to you.
7. If you are a resident of France, Section 20 of the uQontrol Terms of Service is removed and replaced by the following language: “To the extent permitted by applicable law, all controversies, disputes, demands, counts, claims or causes of action between you and uQontrol arising out of, under, or related to this Agreement or our privacy practices, shall be submitted to the exclusive jurisdiction of the courts of Paris (France), even in case of summary proceedings, multiple defendants or appeals.”
8. If you are a resident of an EU country other than France, Section 20 of the uQontrol Terms of Service is removed and replaced by the following language: “The terms of this agreement shall be governed by the laws of the EU country in which you live. You may therefore bring a claim to enforce your consumer protection rights in connection with these terms in the courts of such EU country.”
9. For French residents only, notices sent to uQontrol pursuant to Section 20(b) should be sent to: uQontrol S. First Ave. Sandpoint Idaho 83864.
10. In the uQontrol Terms of Service, the first three sentences are removed and replaced by the following language: “This Terms of Service Agreement is subject to occasional revision, and if we make any changes to it, we will notify you by sending you an e-mail to the last e-mail address you provided to us. Any changes to this Terms of Service Agreement will be effective thirty (30) calendar days following our dispatch of an e-mail notice to you.”
11. Section 22 of the uQontrol Terms of Service does not apply to you. Instead, EU users should send consumer complaints to: [email protected]
414 Church St.
Sandpoint, ID 83864