Questionmark Live Terms and Conditions

Transcription

1 Questionmark Live ( the Service ) is a service to help you author questions and assessments. These Terms and Conditions constitute the entire terms and conditions upon which You may use the Service, and are distinct from and may vary from any other terms and conditions, agreements or specifications entered into between Questionmark, an affiliate of Questionmark or Questionmark reseller and You for the provision of other products or services, including, without limitation, Questionmark Perception and Questionmark OnDemand. You represent that You have the authority to agree to these Terms and Conditions. To agree to these Terms and Conditions, click Agree. If you do not agree to these Terms and Conditions, do not click Agree and do not use the Service. These Terms and Conditions replace any prior terms and conditions to which You may have previously agreed to use the Service. Definitions Assessment means a systematic method of obtaining data, evidence or results, including but not limited to tests, examinations, questionnaires, and surveys. Commencement Date means the earlier of either accepting an offer to use the Service, Your registration for the Service, or the date You start using the Service. "Your Content" means the Intellectual Property (as defined herein) (owned, or licensed by You), stored within the Service. "Your Data" means Your Content and any data, information or material provided or submitted by You or by any Participant (as defined herein) to the Service, or data collected and/or calculated by the Service in the course of using the Service. Notwithstanding the foregoing, Your Data does not include the software, scripts, documentation and templates that are provided by Questionmark. "Documentation" means the audio and visual information, documents, software, products and services contained or made available to You by Questionmark in the course of using the Service. "Intellectual Property" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world. Participant means any person that participates in an Assessment by answering questions or otherwise responding to the Assessment process. "Questionmark" means Questionmark Corporation, a Connecticut corporation located at 35 Nutmeg Drive Suite 330, Trumbull, CT 06611, United States of America. Questionmark Corporation operates the Service in conjunction with other Questionmark companies for use by customers around the world. "Questionmark Technology" means all of Questionmark and its affiliates proprietary technology (including the Service software, Questionmark Perception and Questionmark OnDemand software, other software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information). "Service" means the Questionmark Live service developed, operated, and maintained by Questionmark, to which You are being granted access pursuant to these Terms and Conditions. Service Configuration means the rights to the Service and the Term, based on the following configuration (unless otherwise agreed by Questionmark in writing): - Number of users: One - Permitted use: Author Items and Assessments - Publish to: Questionmark Perception or Questionmark OnDemand - Storage space: 100Mb

2 "Term" means the period during which You are entitled to use the Service, which shall commence on the Commencement Date and shall continue until terminated by Questionmark as more particularly provided for in these Terms and Conditions. Third Party Software shall mean software components that are not written by Questionmark or its affiliates, which are either third party libraries which Questionmark or its affiliates have purchased for use with the Service or open source software components which Questionmark has reviewed and accepted for use within the Service. You and Your shall refer to you as an individual, or in the case where you represent an organization or legal entity, that legal organization or entity. Grant of License to Use and Restrictions Questionmark hereby grants You a non-exclusive, non-transferable, royalty free, non-sublicensable worldwide license to use the Service, solely for Your own internal business purposes, for the Term, limited to the Service Configuration and subject to the limitations in these Terms and Conditions. All rights not expressly granted to You herein are hereby reserved by Questionmark, its affiliates, suppliers and licensors. You may not access the Service if You are a direct competitor of Questionmark or of a Questionmark affiliate, except with Questionmark's prior express written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, share, lend, distribute or otherwise commercially exploit or make available to any third party the Service or the Documentation in any way; (ii) modify or make derivative works based upon the Service or the Documentation; (iii) hide or attempt to hide copyright information or ownership of the Service; or "frame" or "mirror" the Service or any Documentation on any other server or device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Service to be Provided You understand and agree that the Service is entirely separate and distinct from any other product or service that You or an organization you are employed by or affiliated with have contracted to receive from Questionmark, a Questionmark affiliate or Questionmark reseller, including without limitation Questionmark Perception and Questionmark OnDemand, and that these Terms and Conditions apply exclusively to Your use of the Service. You understand and agree that other products and services that You receive from Questionmark or a Questionmark affiliate or reseller, including without limitation Questionmark Perception and Questionmark OnDemand, are provided in accordance with separate terms and conditions entered into between You and Questionmark or a Questionmark affiliate or reseller. Subject to these Terms and Conditions, Questionmark shall provide You with access to the Service. Periodically, Questionmark will conduct routine scheduled maintenance of the Service and during such time You may be unable to access the Service. You acknowledge and agree that Questionmark shall not be liable or otherwise responsible to You for any losses, liabilities, claims, costs and/or expenses of any kind, whether direct or indirect, as a result of, or incurred in connection with, such scheduled and any unscheduled maintenance. Questionmark uses commercially reasonable efforts to provide the Service twenty-four (24) hours a day seven (7) days a week other than scheduled and unscheduled maintenance and Force Majeure Events. Questionmark reserves the right to modify these Terms and Conditions and its policies relating to the Service at any time, effective upon posting of an updated version of these Terms and Conditions or its policies on the Service. You are responsible for regularly reviewing these Terms and Conditions. Continued use of the Service after any such changes shall constitute Your consent to such changes. Account Information and Data Questionmark does not own any Your Data. You, not Questionmark, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Your Data, and Questionmark shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Your Data. Questionmark Technology includes software for archiving and exporting Your Data and Questionmark recommends that You make copies of

3 important data in case of loss. You acknowledge that Questionmark exercises no control whatsoever over Your Data or the information passing through the Service and it is Your sole responsibility to ensure that the information the Service receives and transmits complies with all applicable laws and regulations. Notwithstanding the foregoing and without limiting Questionmark s other rights to terminate Your access to and use of the Service as provided for in these Terms and Conditions, Questionmark shall have the right to terminate or restrict Your access to the Service in the event of any breach, or reasonably anticipated breach, of these Terms and Conditions by You. Intellectual Property Ownership Questionmark alone (and its affiliates and licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property rights, in and to the Service, the Questionmark Technology and the Documentation ( Questionmark Intellectual Property ) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided or submitted by You or any other party relating to Questionmark Intellectual Property. You acknowledge and agree that entry into these Terms and Conditions is not a sale and does not convey to You any rights of ownership in or related to the Service, the Documentation, the Questionmark Technology or Questionmark Intellectual Property rights. The Questionmark name, the Questionmark logo, and the product names associated with the Service are trademarks of Questionmark, its affiliates or third parties, and no right or license is granted to use them without the prior express written consent of Questionmark. Third Party Interactions During Your use of the Service, You may enter into agreements and correspondence with third parties and any such agreements, activity, correspondence, terms, conditions, warranties or representations are solely between You and the applicable third-party. Questionmark, its suppliers, and its licensors hereby disclaim any and all liability or responsibility for any such agreements, correspondence, and/or activities. In the event that the Service includes any links to any website(s) owned or operated by any third party or third parties, You acknowledge and agree that Questionmark does not endorse any such websites or any content, products, services or information contained, located or made in or on such websites. You further acknowledge and agree that Questionmark provides these links to You only as a matter of convenience, and in no event shall Questionmark or its licensors be responsible or liable for any content, products, services or other materials on or available from such websites or the business and privacy practices of the owners or operators of such websites. Third Party Software Where the Service includes Third Party Software, Questionmark grants You a non-exclusive, non-transferable, royalty free, nonsublicensable right and license to use the Third Party Software only in connection with Your license of the Service and for no other purpose(s). In the event that You wish to use the Third Party Software for any purpose(s) other than in connection with the license of the Service, You will be solely responsible for obtaining a license directly with the owner of the Third Party Software. You acknowledge and agree that Third Party Software may contain disclosures, notices and/or disclaimers, including without limitation copyright notices, and You agree not to remove, modify or otherwise alter any such disclosures, notices and/or disclaimers, nor to modify or alter Third Party Software without the permission of the owner of it or as may be permitted by law. Excess Data Storage The maximum storage space provided to You at no additional charge for assessment material, video, audio, graphics and multimedia data is defined in the Service Configuration. If the amount of storage required exceeds this limit, Questionmark reserves the right to charge You at then-current storage fees on the provision of reasonable prior notice. Taxes Questionmark has no liability for any and all national, state, municipal or other governmental excise, sales, value-added tax (VAT), use, personal property, and occupational taxes, excises, withholding taxes and obligations and other levies now in force or enacted in the future, all of which, if payable based on Your agreement to these Terms and Conditions and/or use of the Service, You will be responsible for and will pay in full, except for taxes based on Questionmark s net income. Your Responsibilities You are responsible for the use of the Service. You will abide by all applicable local, state, national and foreign laws, codes, treaties and regulations in connection with Your use of the Service, including, without limitation, those related to data privacy, international communications and the transmission and storage of technical or personal data, and take all actions necessary to ensure compliance

4 with the same. You will: (i) notify Questionmark immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Questionmark immediately and use reasonable efforts to stop immediately any copying or distribution of Documentation that is known or suspected by You; and (iii) not impersonate another Questionmark user or provide false identity information to gain access to or use the Service. You acknowledge that the Service may be used as part of a process to contribute to the assessment of a Participant's knowledge, skills and attitudes and allocate a score. The score should be considered one piece of evidence about a Participant's knowledge, skill and/or attitude. When Assessments authored using the Service are being used to make decisions about a Participant, You should review and evaluate the score to ensure that the appropriate decision has been made. You acknowledge and agree that You are solely responsible for the use of the Service, including entering and maintaining the Assessment material, checking this material, checking scores and using Assessments fairly. Should You use the Service to author high stakes assessments, or other kinds of assessments, which are used to make important decisions about people, You acknowledge that You have a responsibility to thoroughly review and evaluate the materials, scores, and reports produced by the Assessments, to ensure that the appropriate decisions are being made. You will indemnify, defend and hold Questionmark, its suppliers, and/or its licensor harmless from any and all claims, demands, losses, liabilities, damages, awards, fines, judgments, penalties, costs and/or expenses and suits arising out of, whether directly or indirectly, Your use of the Service or use of the scores to determine decisions relating to Participants, including but not limited to any and all claims, liabilities, damages, costs and/or expenses, and suits arising from, related to, or caused by any employment decisions, whether favorable or adverse in nature or effect, made by You based upon Your use of the Service or the scores produced in connection with Your use of the Service, including but not limited to employment termination or discharge, or discipline; employee compensation; and/or employment promotions or advances. As between Questionmark and You, You are solely responsible for all costs to connect to the Service. You accept that it is Your responsibility to comply with any applicable data protection and human rights laws in the processing of personal data, and that You shall indemnify, defend and hold Questionmark and/or its licensors harmless from any and all claims demands, losses, liabilities, damages, awards, fines, judgments, penalties, costs and/or expenses of any kind or nature, arising out of, whether directly or indirectly, Your use of the Service to hold or process personal data. If You use the Service to hold or store personal data obtained from or about individuals residing in countries that are member states of the European Union, You agree to treat such personal data either in direct compliance with European Union data protection laws, including without limitation the EU Data Protection Directive (95/46/EC) and all similar, replacement or successor laws whether in regulation, directive or other form. Furthermore You agree that You will not violate or breach the applicable data protection laws of any county, state, province or country. You acknowledge and agree that the Service is not intended or provided for use: a. In connection with any Inherently dangerous applications or services, the failure of which could result in death, personal injury, catastrophic damage, or mass destruction; b. To Store any information, including medical records or personal identifiable information, that might infringe the rights of others. You will not, and will not permit any persons using the Service to do any of the following: Send Spam (unsolicited s or communications in any form). Infringe or misappropriate the Intellectual Property rights of any third party or third parties. The foregoing includes, without limitation, posting copyrighted materials without appropriate permission, using trademarks of any third party or third parties without appropriate permission or attribution, and posting or distributing trade secret information of any third party or third parties in violation of a duty of confidentiality. Violate the personal privacy rights of any third party or third parties. This includes using and distributing information about Internet users without their permission, except as permitted by applicable law. Send, post or store harassing, abusive, threatening, libelous or obscene materials or otherwise unlawful or tortuous material. Intentionally omit, delete, forge or misrepresent transmission information, including headers, return addressing information and internet protocol ( IP ) addresses or take any other actions intended to cloak Your identity. Use the online facilities for any illegal purposes. Assist or permit any persons in engaging in any of the activities described above. If You become aware of any such activities, You will take all actions necessary to stop such activities immediately. Send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Interfere with or disrupt the integrity or performance of the Service or the data contained therein.

5 Attempt to gain unauthorized access to the Service or its related systems or networks. Phone and Support The Service includes online help and an online knowledgebase, and should be usable without requiring support from Questionmark. Questionmark does not provide phone support for the Service. Questionmark does provide support for the Service and will publish from time to time addresses that can be used to obtain support on the Service. Questionmark will use reasonable efforts to respond to queries sent by within two business days of receipt of such s. Term and Termination Your access to the Service shall continue for the Term, subject to the termination provisions herein. Upon termination of Your access to the Service and unless otherwise specifically provided for herein, Questionmark s obligations under these Terms and Conditions shall end. Termination for Convenience Questionmark may terminate Your access to the Service for convenience and effective immediately, on the provision of written notice and without penalty. In the event Your access to the Service is terminated other than by reason of Your material breach of these Terms and Conditions, Questionmark will make available to You a file of the Your Data in standard format within thirty (30) days of termination if You so request at the time of termination. You agree and acknowledge that Questionmark has no obligation to retain the Your Data, and may delete such Your Data, more than thirty (30) days after termination. For the avoidance of doubt, Questionmark may cease to operate the Service by giving notice as above. Termination for Cause Questionmark may terminate Your access to the Service for cause and effective immediately if: (i) You materially breach any term or condition of these Terms and Conditions; (ii) You become the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) You become the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. Any unauthorized use of the Questionmark Technology or Service will be deemed a material breach of these Terms and Conditions. Questionmark, in its sole discretion, may also terminate Your access to the Service for cause and effective immediately if You breach or otherwise fail to comply with these Terms and Conditions. In addition, Questionmark may terminate a free account at any time in its sole discretion. You agree and acknowledge that Questionmark has no obligation to retain the Your Data, and may delete, withhold or remove such data, if You have materially breached these Terms and Conditions. Confidential Information The parties acknowledge and agree that during Your access to the Service, each party may disclose Confidential Information (as defined herein) to the other party. As a result, the receiving party agrees to keep the Confidential Information strictly confidential for a period of at least five (5) years after receipt (including after termination of Your access to the Service) and to only disclose the Confidential Information to its respective employees and agents on a need to know basis in connection with the Service. For the purpose of these Terms and Conditions, Confidential Information shall include, but not be limited to Questionmark Technologies, Documentation, Your Data, User Names, Passwords, and the specifications and requirements of such, information of the disclosing party specifically marked or referenced as confidential, and any and all other information which relates to the internal methods of operation of the disclosing party. Confidential Information shall also include visual information observed by the receiving party, while on the disclosing party s premises or while accessing the network of the disclosing party, regardless of whether the disclosing party has specifically marked or referenced such Confidential Information as confidential. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of these Terms and Conditions by the receiving party; or (iv) is independently developed by the receiving party without reference to Confidential Information.

6 Representations & Warranties Each party represents and warrants that it has the legal power and authority to enter into these Terms and Conditions. Questionmark represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Documentation under normal use and circumstances. You represent and warrant that You have not falsely identified yourself nor provided any false information to gain access to the Service. You represent and warrant that You own or have the legal right and authority, and will continue to own or maintain the legal right and authority during the Term, to disclose, place and use the Your Data including any personal data as contemplated by these Terms and Conditions, and to use, modify, transmit, and distribute the Your Data including personal data, including transfer of such data to Questionmark s United States of America data center without infringing, misappropriating, or otherwise violating any Intellectual Property rights of any third party or third parties. You represent and warrant that You are familiar with the laws and regulations applicable to Your usage of the Service and that Your agreement to these Terms and Conditions will not violate any applicable law, decree or regulation by which You are bound. You represent and warrant that Your Data and any personal data does not, and will not during the Term, contain or transmit any information, data or material in violation of any applicable local state, national, foreign or international law. Indemnification Your Indemnification: You shall indemnify, defend, and hold Questionmark, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities, awards, fines, judgments, penalties and expenses (including attorneys' fees and costs) to the extent arising out of or in connection with: (i) a claim alleging that use of the Your Data including personal data infringes, misappropriates or otherwise violates the Intellectual Property rights of, or has caused harm to, a third party or third parties; (ii) the breach or violation by You of these Terms and Conditions; and/or (iii) the negligent acts or omissions of, or willful misconduct by, You. Questionmark shall provide You with reasonable notice of any such claim, provided, however that Questionmark s failure to provide such notice shall not release or relieve You from Your indemnification, defense and hold harmless obligations, except to the extent such failure materially prejudices Your ability to provide such indemnification and defense. Questionmark shall reasonably cooperate with You in the defense of any such claim. Questionmark s Indemnification: Subject to the Third Party Software Replacement clause below, Questionmark shall indemnify and hold You and Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against final non-appealable judgments or awards from courts of competent jurisdiction or binding-arbitration proceedings, including reasonable attorneys fees and court costs to the extent such judgments or awards result from claims, actions or lawsuits filed or commenced by a third party or third parties and to the extent caused by or resulting from Questionmark s (i) infringement or misappropriation of a copyright or trademark or a United States patent issued as of the Commencement Date; and/or (ii) breach of these Terms and Conditions; provided, however, that You (a) promptly give written notice of the claim to Questionmark; (b) provide to Questionmark all available information and reasonable assistance; and (c) have not compromised or settled such claim. If Your use of the Service is prevented by injunction or otherwise, or if in Questionmark s judgment such an outcome is likely, Questionmark will: (i) modify the Service so that it becomes non-infringing but of equivalent functionality; (ii) replace the Service with non-infringing service of equivalent functionality, in both the foregoing (i) and (ii) said functional equivalence to be determined in Questionmark s sole discretion; or (iii) if neither of the first two (2) alternatives is commercially reasonable in the judgment of Questionmark, terminate the Service. This clause will not apply to an injunction arising out of or caused by elements supplied by You or by a third party or parties at Your request, including, but not limited to, any software or Your Data. Questionmark shall have no indemnification obligation, and You shall indemnify, defend and hold Questionmark, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless pursuant to these Terms and Conditions, for claims arising from any infringement arising from the combination of the Service with any other products, services, or business process(s), including Your Data and personal data, used, provided, licensed, or owned by You. Third Party Software Replacement. You acknowledge and agree that, while Questionmark has to its knowledge not violated the copyright or US patent rights of any third party, the use of Third Party Software may expose You to possible claims or liabilities. In the event that a court of competent jurisdiction determines that Questionmark s use of the Third Party Software in connection with the Service licensed to You pursuant to these Terms and Conditions, infringes, misappropriates or otherwise violates any copyright or US

7 patent rights of a third party ( Third Party IP Claim ), Questionmark will in its sole determination either (i) modify the Service or Third Party Software or component so that it becomes non-infringing; or (ii) replace the Third Party Software or component thereof, subject to the Third Party IP Claim or (iii) if neither of the first two (2) alternatives is commercially reasonable in the judgment of Questionmark, terminate the Service. This clause will not apply to infringements which would not be such except for elements supplied by You or by a third party or third parties at Your request, including, but not limited to, any software or Your Data and personal data. You acknowledge and agree that the foregoing remedies are the sole and exclusive remedies available to You in the event of a Third Party IP Claim and You hereby expressly waive and forever release Questionmark from any and all other claims, demands, damages, lawsuits, liabilities, losses, judgments, fines, penalties and/or costs and/or expenses of any kind or nature, arising out of, resulting from or connected with, whether directly or indirectly, any Third Party IP Claim. Disclaimer of Warranties QUESTIONMARK, ITS SUPPLIERS, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER SYSTEM OR DATA, (B) THE SERVICE OR ANY PRODUCT PURCHASED OR OBTAINED THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN NO EVENT SHALL QUESTIONMARK BE LIABLE OR OTHERWISE RESPONSIBLE FOR ANY DAMAGE TO, OR LOSS OF, ANY OF YOUR DATA OR ANY THIRD PARTY PERSONAL OR OTHER DATA PROVIDED BY CUSTOMER, RESULTING FROM ANY CAUSE WHATSOEVER, EXCEPT TO THE EXTENT CAUSED BY QUESTIONMARK S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. QUESTIONMARK WARRANTS THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. QUESTIONMARK DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WHILE THE SERVICE PROVIDES CONNECTIVITY TO THE INTERNET, QUESTIONMARK DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM QUESTIONMARK S DATA CENTERS TO OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES OVER WHICH QUESTIONMARK HAS NO CONTROL. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH YOUR CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH QUESTIONMARK WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS REASONABLY APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, QUESTIONMARK CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, QUESTIONMARK DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY RESULTING FROM OR RELATED TO SUCH EVENTS. QUESTIONMARK DOES NOT MAKE ANY WARRANTY AS TO SPEED OVER THE INTERNET, AND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM INTERNET DELAYS. THE SERVICE PROVIDED BY QUESTIONMARK HEREUNDER IS MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS AND CONDITIONS, QUESTIONMARK HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Limitation of Liability EXCEPT FOR THOSE SECTIONS OF THESE TERMS AND CONDITIONS DEALING WITH (A) CONFIDENTIAL INFORMATION, (B) INTELLECTUAL PROPERTY, (C) INDEMNIFICATION FOR THIRD PARTY CLAIMS, AND/OR (D) VIOLATIONS OF LAW; IN NO EVENT SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Notice

8 Questionmark may give notice via the Service, by electronic mail to Your address on record, or by written communication sent by first class mail or pre-paid post to Your address on record in Questionmark's account information. Such notice shall be deemed to have been given upon two (2) business days after mailing or posting (if sent by first class mail or pre-paid post) or (12) hours after sending by . You may give notice to Questionmark (such notice shall be deemed given when received by Questionmark) at any time by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Questionmark Corporation, 35 Nutmeg Drive Suite 330, Trumbull, CT 06611, USA with a copy also to be sent by to legalnotices@questionmark.com. Assignment This Terms and Conditions, whether in whole or in part, may not be assigned by You without the prior express written approval of Questionmark, which may be granted or withheld in Questionmark s sole discretion. Questionmark may assign these Terms and Conditions, whether in whole or in part, without providing prior written notice to, or receiving prior consent from, You, to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Questionmark s assets, or (iii) a successor by merger. In the event of any such assignment by Questionmark, Questionmark shall provide You with written notice within a reasonable period of time after the effective date of such assignment. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of Questionmark directly or indirectly owning or controlling fifty (50%) or more of You shall entitle Questionmark to terminate Your access to the Service for cause immediately upon written notice to You. Notwithstanding the foregoing Questionmark may subcontract its obligations to related companies or sub-contractors at its reasonable discretion and without notice to, or consent from, You. General Neither party will be liable for any failure or delay in its performance under these Terms and Conditions due to any cause beyond its reasonable control, including act of war, acts of terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (a Force Majeure Event ), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance. These Terms and Conditions shall be governed by law of the State of Connecticut, USA, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with these Terms and Conditions or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Bridgeport, Connecticut and without reference to the 1980 United Nations Convention on Contracts for the International Sales of Goods and any amendments thereto. No text or information set forth on any other purchase order, preprinted form or document (other than as specifically agreed by the parties in writing) shall add to or vary the terms and conditions of these Terms and Conditions. You acknowledge that Questionmark has entered into these Terms and Conditions in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential part of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in these Terms and Conditions will survive and apply even if found to have failed of their essential purpose. Should You be domiciled in a country outside the United States, You will be exclusively liable for any issues triggered by the applicability and/or enforcement of the laws of that country in related in any way to these Terms and Conditions. You hereby expressly waives any right granted by that country that may confer to You any rights different than those specifically contemplated and provided under these Terms and Conditions. You shall indemnify, defend and hold Questionmark harmless against any and all claims related to any claims or additional obligations imposed on Questionmark due to the application and/or enforcement of law in non-us jurisdictions. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between You and Questionmark as a result of these Terms and Conditions or use of the Service. The failure of Questionmark to enforce any right or provision in these Terms and Conditions shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Questionmark in writing. These Terms and Conditions comprise the entire agreement between You and Questionmark in respect of the Service and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein, which are not included or incorporated in these Terms and Conditions.

9 Local Laws and Export Control You acknowledge that the Service supplied by Questionmark under these Terms and Conditions is subject to the Export Control Regulations of the United States ( U.S. ). You agree to provide any required assistance to Questionmark in complying with the export controls including, but not limited to, supplying a statement as to ultimate destination and complying with any import regulations. The Service provides services and uses software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and any other U.S. governmental agencies, and the export control regulations of Switzerland ( Swiss ) and the European Union. You acknowledge and agree that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, You represent and warrant that You are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts and Council Regulation (EC) No. 428/2009 (as amended). Questionmark, its suppliers, and its licensors make no representation that the Service is appropriate or available for use in other locations. If You use the Service from outside the United States of America, Switzerland and/or the European Union, You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. U.S. Government Restricted Rights. If the Service is licensed to or on behalf of the United States of America, its agencies and/or instrumentalities ( U.S. Government ), it is provided with RESTRICTED RIGHTS. To the extent that a license of the Service is considered a license of software, the Service and accompanying Documentation are commercial computer software and commercial computer software documentation, respectively, pursuant to 48 C.F.R and , and restricted computer software pursuant to 48 C.F.R (a), as applicable. Use, modification, reproduction, release, performance, display or disclosure of the Service and accompanying Documentation by the U.S. Government are subject to restrictions as set forth in these Terms and Conditions and pursuant to 48 C.F.R , (Alternate III), , , and , as applicable.