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 signed 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.
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.
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 any right, title, or interest in and to any materials or information provided to it by Buyer.
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.
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.
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 online 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
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 of this Agreement. Notices shall be effective upon receipt.
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.
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 Sale, 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 Sale.
- 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. PO Box 51, Sandpoint ID 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 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 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 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
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.
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 or 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.