Last Updated: August 12, 2018
Welcome, and thank you for your interest in QUESTABOX. QUESTABOX (“QUESTABOX,” “we,” “us,” or “our”) which operates the web site located at http://www.questabox.com (the “Website”) and at www.qxlearn.com and related application programming interfaces (“APIs”), mobile applications and online services, including, but not limited to, the related applications, any Downloadable Content, and any other products and services that Company may provide now or in the future (collectively, the “Services”). The following Terms of Service are a legal contract between you (“you” and “your”) and QUESTABOX regarding your use of the Services. Visitors and users of the Services are referred to individually as “User” and collectively as “Users”.
IF YOU ARE A PARENT OR GUARDIAN AND YOU PROVIDE CONSENT FOR YOUR CHILD TO REGISTER WITH THE WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN RESPECT OF SUCH CHILD’S USE OF THE WEBSITE. IF YOU ARE SCHOOL PERSONNEL (AS DEFINED BELOW) AND YOU REGISTER A SCHOOL USER (AS DEFINED BELOW), YOU AGREE, ON BEHALF OF YOUR INSTITUTION, THAT THE SCHOOL USER IS BOUND BY THE TERMS, UNLESS YOUR INSTITUTION HAS A SEPARATE WRITTEN SERVICE AGREEMENT WITH QUESTABOX THAT ACCEPTS THESE TERMS ON BEHALF OF SCHOOL USERS.
PLEASE NOTE THAT THESE TERMS INCLUDE A BINDING ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER. BY AGREEING TO BINDING ARBITRATION, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE.
1. Eligibility: By clicking the “I Agree” button or by otherwise using or registering an account for the Services, you represent that (i) you are a US resident at least 13 years of age, or (ii) you are not a US resident, and are of legal age of consent to open an account under the laws of your country of residence, or (iii) your use of the Services has been approved by your parent or legal guardian, or by your school or teacher for school use. You also represent that you have not been previously suspended or removed from the Services by QUESTABOX, and that your registration and your use of the Services is in compliance with any and all applicable laws.
1.1. Account. In order to use certain features of the Services, you must register for an account. You may be asked to provide a password in connection with your account. You are solely responsible for maintaining the confidentiality of your account and password, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to QUESTABOX, whether at registration or at any other time, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), then you agree to immediately notify QUESTABOX at firstname.lastname@example.org. You may be liable for the losses incurred by QUESTABOX or others due to any unauthorized use of your Services account.
1.3. Child User. If you are under the age of 13 (a “Child User”), you may not create or register an account for the Services without consent and approval from your legal parent or guardian, or from your school as provided in Section 1.6 (“School Use”). If you are under the age of 18, you represent that your parent or legal guardian has reviewed and agreed to the Terms on your behalf. Except for accounts created for School Use as provided in Section 1.6, a Child User that begins the registration process for himself or herself without a Parent User (as defined below) may have the registration process restricted until a parent approves or assumes responsibility for the Child User account. A Child User may use the Services if registered through certain educational organizations or, in certain cases, by School Personnel that have entered into a relationship directly with QUESTABOX, so long as the education organization has obtained parent or guardian consent, or has complied with an exemption to parent consent requirements under applicable law. A Child User will only be permitted to use the Services for so long as QUESTABOX reasonably believes that such access has been consented to by the Child User’s parent or guardian, or by School Consent (as discussed in Section 1.6, “School Use”).
1.4. Parent User. If you are at least 18 years of age and you are the legal parent or guardian of a child that seeks to register as a Child User of the Services, you may register a parent account on the Services (“Parent User”). Through a Parent User account, you may create, register, manage and approve Child User accounts only for your own child(ren) or child(ren) for whom you are a legal guardian. IF YOU REGISTER, APPROVE OR CONSENT TO THE REGISTRATION OF, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY CHILD USER, YOU REPRESENT AND WARRANT THAT YOU ARE SUCH CHILD USER’S LEGAL PARENT OR GUARDIAN AND YOU AGREE TO BE BOUND BY THE TERMS ON BEHALF OF SUCH CHILD USER, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE WEBSITE BY THE CHILD USER. You acknowledge that QUESTABOX may choose, but is not obligated, to make any inquiries, either directly or through third parties, that QUESTABOX deems necessary to validate your registration information, including without limitation engaging third parties to provide verification services. QUESTABOX reserves all rights to take legal actions against anyone who misrepresents personal information or is otherwise untruthful about their identity. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE THAT QUESTABOX CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION SUBMITTED BY ANY USER AND QUESTABOX IS NOT OBLIGATED TO VERIFY THE IDENTITY OF ANY USER, INCLUDING ANY USER’S CLAIM TO BE A PARENT USER, OR TO VERIFY THAT A PARENT IDENTIFIED BY A CHILD USER OR OTHER PARTY DURING REGISTRATION IS SUCH CHILD USER’S ACTUAL PARENT OR GUARDIAN. A Parent User account, along with all associated Child User accounts, may be terminated by QUESTABOX at any time and without warning for any failure to abide by these Terms.
1.5. School Use. QUESTABOX may make available certain features and tools that permit Users registered as teachers, school leaders, aides, or other similar school personnel (“School Personnel”) to work with students and other Users through the Services in order to provide such students with tutorial, educational and other education-related services as part of the school’s curriculum, and to review and evaluate educational achievement and progress of such students. If you are School Personnel accessing the Services on behalf of a school, school district, or other similar educational institution (an “Institution”), the following terms apply to you:
- (a) Limitations on Use. The Services and Website are provided to you for educational purposes as part of the school curriculum. You must use the Services and the Website in compliance with all applicable laws, rules, and regulations. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purpose, any portion of the Services, the Website, or access to the Services or Website.
- (i) You are familiar with and agree to be responsible for compliance with the Family Educational Rights and Privacy Act and the US Department of Education’s implementing regulations at 34 CFR Part 99 (collectively, “FERPA”), and all other laws, rules or regulations concerning the collection, use, and disclosure of personally identifiable information about Users in your Institution (collectively, “Applicable Privacy Law”).
- (iii) You assume sole responsibility (and hereby agree that QUESTABOX is not responsible) for obtaining any consents required from parents or guardians, to the extent required under COPPA, FERPA or other Applicable Privacy Law, in connection with the Services, use of the Website for classroom use (including use of Linked Accounts referred to in Section 1.8), and disclosure of personally identifiable information to QUESTABOX in connection therewith. You represent and warrant to QUESTABOX that, prior to creation of accounts for School Use, you have either obtained all necessary parent or guardian consents, or have complied and will comply with all applicable requirements of an exemption from or exception to parental consent requirements, including:
- under FERPA, you have complied and will comply with the “school official” exception, or the “directory information” exception thereunder; and
- under COPPA, with respect to Students under the age of 13, you are acting as the agent of the parent and consenting on their behalf to the sharing of the Student’s personal information.
- We refer to this a “School Consent”. If a Parent User does not consent or rescinds such School Consent, School Personnel or the Institution shall immediately notify QUESTABOX to discontinue that Student’s access to the Services and ensure that such Student’s information is no longer accessible through the Services. Under no circumstances will QUESTABOX be liable for the School Personnel’s failure to consult their school’s authorities and administrators or for failing to obtain School Consent when required.
- (c) Identification of School Accounts. Students and School Personnel may have personal accounts, in addition to accounts established for use in the classroom and associated with the Institution’s use of the Services (“School Accounts”). If the Institution has a separate written service agreement with QUESTABOX that includes rostering services for your Institution, accounts provided for classroom use will be School Accounts. In other cases, in order for accounts established for use in the classroom to be designated as “School Accounts,” the accounts must be (1) created by School Personnel (for example, when a teacher creates the user name, login and password to establish School Accounts, or when the teacher rosters a class using Google Drive, or similar Integrated Service (to the extent we support use of such Integrated Service)), or (2) created by a School User at the direction of a School, in each case, using a School email address and associated with a School’s class on the Service. User accounts created with a personal email address will not be considered School Accounts, and will be administered as personal accounts. If you have questions about how to create School Accounts that are associated with a School’s class on the Service, please contact our customer support team at email@example.com
- (d) Use of Integrated Services in School Accounts. If you are School Personnel and you choose to allow your students to log in on the Services using an Integrated Service, such as Google Drive, Google Calendar, or Zoom (to the extent we support use of such Integrated Service), you are responsible for educating your students on the proper use of Integrated Services and protecting their accounts.
1.6 International Use. QUESTABOX operates the Services in the United States. If you choose to access our Services from locations outside the United States, you consent to the collection, transmission, use, storage and processing of content and data (including your personal information) in the United States. You also agree to comply with and are solely responsible for ensuring compliance with all local laws, regulations, and rules in the jurisdiction in which you reside or access the Services, if and to the extent local laws are applicable to use of our Services. If you are under the age of 18, you confirm that you have received parental consent, if required in your jurisdiction, to open an account for Service and enter into these Terms. Unless we have entered into a separate, mutually executed written agreement with you that says otherwise, we do not represent that our Services are appropriate or available for use in jurisdictions outside the United States. The right to access and use the Services is not granted in jurisdictions, if any, where it may be prohibited, or where your use would render QUESTABOX in violation of any applicable laws or regulations, including without limitation, Applicable Privacy Laws.
3. API Terms; Other guidelines.
API Terms. Users who utilize any of QUESTABOX’s application programming interfaces (“APIs”) additionally agree to be bound by QUESTABOX’s API Terms of Service.
4. Modification of the Terms.
4.1 General. Upon opening an account, you accept the Terms in the form posted on our website. QUESTABOX reserves the right, at our discretion, to change, modify, add, or remove portions of the Terms at any time. Please check the Terms and any Guidelines periodically for changes that are made after you open your account. Your continued use of the Services after the posting of changes constitutes your binding acceptance of such changes. For any material changes to the Terms, QUESTABOX will make reasonable effort to provide notice to you of such amended Terms, such as by an email notification to the address associated with your account or by posting a notice on the Services, and such amended terms will be effective against you on the earlier of (i) your actual notice of such changes and (ii) thirty days after QUESTABOX makes reasonable attempt to provide you such notice. However, changes addressing new functions for a service or changes made for legal reasons will be effective immediately. If you do not agree to the modified Terms, you must discontinue your use of the Services. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose.
4.2 School Accounts. The following provisions apply to School Accounts in addition to the provisions set forth in Section 4.1 above. If a change with respect to how personal information contained in education records is used or shared has a material adverse impact on Student Users or an Institution, and the Institution does not agree to the change, the Institution must notify QUESTABOX within thirty days of receiving the notice of change.
5. User Content License Grant
5.1 User Content and Ownership. QUESTABOX may permit (a) the posting and/or publishing by you and other Users of notes, questions, comments, ratings, reviews, images, videos and other audio-visual materials and communications (collectively, “User Postings”) and (b) the posting, creation, or modification by you and other users of computer code (including source code and object code) (“User Code”) (User Postings and User Code, collectively, “User Content”). You understand that whether or not such User Content is published, QUESTABOX does not guarantee any confidentiality with respect to any submissions. Consistent with Applicable Law, as between QUESTABOX and you, you retain all ownership rights you have in any User Content you post or publish to the Services, and QUESTABOX does not claim any ownership rights in or to such User Content. You acknowledge that are solely responsible for your User Content and the consequences of posting, creating, or publishing such User Content.
5.3 License Grant to Users.
- (a) User Postings. By posting, submitting or distributing User Postings through the Services, you hereby grant to each User of the Services a non-exclusive license to access and use your User Postings in any manner permitted or made available by QUESTABOX on or through the Services.
- (b) Downloadable Content. The Services may permit you to download mobile applications or certain digital educational content (“Downloadable Content”). Subject to your complete and ongoing compliance with all the terms and conditions set forth herein, QUESTABOX grants you, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install, view and use the Downloadable Content, in object code form, on devices owned or controlled by you, solely for your personal, non-commercial purposes. You agree not to (i) modify or create derivative works of the Downloadable Content (ii) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management, technical limitations or security features in or protecting the Downloadable Content, and (iii) remove any copyright and other proprietary notices on the Downloadable Content and all copies thereof.
5.4 Access to Your User Content. QUESTABOX may permit Users to share their User Content with a select group of other Users, or make their User Content public for all (even non-Services users) to view. You acknowledge and agree that, although QUESTABOX may provide certain features intended to allow you to restrict some User Content you create from others QUESTABOX does not guarantee that such User Content will never be accessible by others. In the event of unauthorized access, QUESTABOX will use reasonable efforts to notify you pursuant to Section 11.1 below. QUESTABOX HEREBY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY UNAUTHORIZED ACCESS TO ANY RESTRICTED USER CONTENT.
5.5 User Content Disclaimer. You understand that when using the Services you will be exposed to User Content from a variety of sources, and that QUESTABOX is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against QUESTABOX with respect thereto. QUESTABOX does not endorse any User Content or any opinion, recommendation or advice expressed therein, and QUESTABOX expressly disclaims any and all liability in connection with User Content.
6. Digital Millenium Copyright Act. It is QUESTABOX’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. QUESTABOX will promptly terminate without notice your access to the Services if you are determined by QUESTABOX to be a “repeat infringer.” A repeat infringer is a User who has been notified by QUESTABOX of infringing activity violations more than twice and/or who has had User Content or any other user-submitted content removed from the Services more than twice.
7. Proprietary Materials; Licenses
7.1 Proprietary Materials. The Services are owned and operated by QUESTABOX. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), software, services, content, educational videos and exercises, workbooks, books, photographs, illustrations, and all other elements of the Services (the “Services Materials”) are protected by United States and international copyright, patent, and trademark laws, international conventions, and other applicable laws governing intellectual property and proprietary rights. Except for any User Content provided and owned by Users and except as otherwise set forth in this Section 5, all Services Materials, and all trademarks, service marks, and trade names, contained on or available through the Services are owned by or licensed to QUESTABOX, and QUESTABOX reserves all rights therein and thereto not expressly granted by these Terms.
7.2 For any academic source materials such as textbooks and workbooks which you submit to us in connection with our online tutoring or classroom services, you represent and warrant that you are entitled to upload such materials under the “fair use” doctrine of copyright law. In addition, if you request that our system display a representation of a page or problem from a textbook or workbook, you represent and warrant that you are in proper legal possession of such textbook or workbook and that your instruction to our system to display a page or problem from your textbook or workbook is made for the sole purpose of facilitating your tutoring session, as “fair use” under copyright law.
7.3 You agree that we may record all or any part of any live online classes and tutoring sessions (including voice chat communications and videos) for quality control and other purposes. You agree that we own all transcripts and recordings of such sessions, and you hereby irrevocably assign to us all rights in all such transcripts and recordings.
8. Prohibited Conduct.
YOU AGREE NOT TO:
8.1 use the Services for any commercial use or purpose unless expressly permitted by QUESTABOX in writing, it being understood that the Services and related services are intended for personal, non-commercial use only;
8.2 rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses for any Services Materials;
8.3 post, upload, or distribute any defamatory, libelous, or inaccurate User Content or other content;
8.4 post, upload, or distribute any User Content or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
8.5 use the Services in any manner that is harmful to minors, or in any manner that violates QUESTABOX’s Regulations and Policy;
8.6 impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Services accounts of others without permission, or perform any other fraudulent activity;
8.7 delete the copyright or other proprietary rights notices on the Services or on any Licensed Educational Content, Licensed Educational Code, or User Content;
8.8 assert, or authorize, assist, or encourage any third party to assert, against QUESTABOX or any of its affiliates or licensors any patent infringement or other intellectual property infringement claim regarding any Licensed Educational Content or User Content you have used, submitted, or otherwise made available on or through the Services;
8.9 make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Services (including, but not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
8.10 use the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
8.11 defame, harass, abuse, threaten or defraud Users of the Services, or collect, or attempt to collect, personal information about Users or third parties without their consent;
8.12 modify, adapt, translate or create derivative works based upon the Services or any part thereof, except and only to the extent expressly permitted by QUESTABOX herein or to the extent the foregoing restriction is expressly prohibited by applicable law; or
8.13 intentionally interfere with or damage operation of the Services or any user’s enjoyment of it, by any means, including without limitation by participation in any denial-of-service type attacks or by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
9. Term and Termination.
9.1 Term. These Terms shall remain in full force and effect while you use the Services unless your account is terminated as provided in these Terms, in which case you no longer have the right to use the Services.
9.2 Termination by QUESTABOX. QUESTABOX, in its sole discretion, for any or no reason, and without penalty, may suspend or terminate any account (or any part thereof) you may have with QUESTABOX or your use of the Services and remove and discard all or any part of your account, User profile, and User Content, at any time. QUESTABOX may also in its sole discretion and at any time discontinue providing access to the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services or any account you may have, or portion thereof, may be affected without prior notice, and you agree that QUESTABOX will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies QUESTABOX may have at law or in equity. As discussed herein, QUESTABOX does not permit copyright, trademarks, or other intellectual property infringing activities on the Services, and will terminate access to the Services, and remove all User Content or other content submitted, by any Users who are found to be repeat infringers.
9.3 Termination by You. Your only remedy with respect to any dissatisfaction with (i) the Services, (ii) any term of these Terms of Service, (iii) Guidelines, (iv) any policy or practice of QUESTABOX in operating the Services, or (v) any content or information transmitted through the Services, is to terminate the Terms and your account. You may terminate these Terms at any time (prospectively only) by deleting your login account with the Services and discontinuing use of any and all parts of the Services.
9.4 Termination of School Personnel, Child and Student Accounts. Certain Users (e.g., Parent Users and School Personnel) may terminate these Terms with respect their account or to a Child or Student User account that was created by them or at their direction, as provided in this Section.
- (a) Termination by School Personnel. School Personnel may terminate use of the Services individually and/or with respect to School Accounts created by such School Personnel at any time by contacting us at firstname.lastname@example.org, provided, however, that an Institution may require satisfaction of certain requirements before School Personnel can terminate accounts created for school use. Prior to termination of School Accounts at the direction of School Personnel, QUESTABOX may invite Users, or parents or legal guardians of Students, to establish and maintain a personal account for purposes of retaining any content generated or provided and owned by Users under these Terms (including such User’s learning activity). Any such Personal accounts will be established under QUESTABOX ‘s standard account opening process, including parent consent for Users under the age of 13.
- (b) Termination by Parents. As a Parent User, if you created a Child account on the Services and have a Parent User account associated with the Child account, you can terminate your Child’s login account through the account profile, or by contacting our customer support team at email@example.com , although we may need to verify your identity prior to taking any action with respect to the account. Parents of Students who are using School Accounts created by or at the direction of your Child’s teacher in school may first need to contact your child’s school to request termination.
9.5 Responsibility for Pre-Termination activity. Termination of the Terms as to any User account will not limit QUESTABOX ‘s rights and remedies regarding any breach of these Terms occurring prior to such termination.
10. Representations and Warranties. You warrant, represent and agree that you will not provide any User Content or otherwise use the Services in a manner that (i) infringes, violates or misappropriates another’s intellectual property rights, rights of publicity or privacy, or other rights; (ii) violates any international, federal, state or local law, statute, ordinance or regulation or which would render QUESTABOX in violation of any applicable laws or regulations, including without limitation, Applicable Privacy Laws (collectively, “Applicable Law”); (iii) is harmful, fraudulent, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) jeopardizes the security of your account or the Services in any way, such as allowing someone else access to your account or password or submitting User Content that contains viruses. Additionally, you represent, warrant and agree that (i) you possess all rights necessary to provide your User Content and grant Company the rights in these Terms; (ii) you will comply with Applicable Laws in connection with your use of the Service; and (iii), if you are School Personnel, you understand that you are solely responsible for providing notices and obtaining consents required by Applicable Laws for students to use the Services or to provide User Content, including compliance with the applicable provisions of FERPA and COPPA when using School Consent.
11. Indemnification. You agree, to the extent permissible under your state’s laws, to indemnify, defend, and hold harmless QUESTABOX, and its parent, successors, affiliated companies, contractors, officers, directors, employees, agents and its third-party suppliers, licensors, and partners (“QUESTABOX Parties”) from and against all losses, damages, liabilities, demands, judgments, settlements, costs and expenses of any kind (including legal fees and expenses), from any claim or demand made by any third-party relating to or arising out of (i) your access to, use or misuse of the Services; (ii) your breach or alleged breach of these Terms, or any violation of the Terms; (iii) any breach of the representations, warranties, and covenants made herein, whether by you or by any Child User or School User whose account you have approved as a Parent User or School Personnel; (iv) your failure to comply with Applicable Laws (including any failure to obtain or provide any necessary consent or notice); (v) the infringement by you or any third-party using your account of any intellectual property, privacy, or other right of any person or entity, including in connection with your User Content, or (vi) your breach or alleged breach of any interaction, agreement, or policy between you and any other Users. QUESTABOX reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify QUESTABOX, and you agree to cooperate with QUESTABOX’s defense of these claims. You agree not to settle any such matter without the prior written consent of QUESTABOX. QUESTABOX will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
12. Disclaimers; No Warranties
12.1 No Warranties. THE WEBSITE, AND ALL DATA, INFORMATION, SOFTWARE, WEBSITE MATERIALS, CONTENT (WHETHER OWNED OR LICENSED), USER CONTENT, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE (THE ” QUESTABOX OFFERINGS”), ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE QUESTABOX PARTIES DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, AVAILABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM QUESTABOX OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
12.2 Content. QUESTABOX, AND THE QUESTABOX PARTIES, DO NOT WARRANT THAT THE WEBSITE OR ANY DATA, USER CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. QUESTABOX AND THE QUESTABOX PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT (1) THE QUESTABOX OFFERINGS WILL (A) MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR BE TO YOUR LIKING, OR (B) WILL BE TIMELY, SECURE, ACCURATE, FREE FROM ERRORS OR LOSS, OR UNINTERRUPTED, (2) THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR (3) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED. SOME FEATURES MAY BE NEW OR EXPERIMENTAL AND MAY NOT HAVE BEEN TESTED IN ANY MANNER.
12.3 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOUR USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINING OF CONTENT, WEBSITE MATERIALS, SOFTWARE, OR DATA THROUGH THE WEBSITE (INCLUDING THROUGH ANY API’S) IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS THEREFROM.
12.4 Limitations by Applicable Law. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
13. Limitation of Liability and Damages.
13.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL QUESTABOX OR THE QUESTABOX PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR PROFITS, LOSS OF DATA, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) EVEN IF QUESTABOX OR A QUESTABOX PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF OR RELATING (i) TO THE TERMS; (ii) YOUR USE OF (OR INABILITY TO USE) THE WEBSITE OR THE QUESTABOX OFFERINGS, OR (iii) ANY OTHER INTERACTIONS WITH QUESTABOX OR ANY THIRD-PARTY THROUGH OR IN CONNECTION WITH THE QUESTABOX OFFERINGS, INCLUDING OTHER USERS,. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, QUESTABOX’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
13.2 Limitation of Damages. IN NO EVENT WILL QUESTABOX’S OR THE QUESTABOX PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE TERMS OR YOUR USE OF THE WEBSITE OR YOUR INTERACTION WITH OTHER WEBSITE USERS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU TO QUESTABOX, IF ANY, FOR ACCESSING THE WEBSITE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.
13.3 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT QUESTABOX HAS OFFERED THE WEBSITE AND ENTERED INTO THE TERMS IN RELIANCE UPON THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND QUESTABOX, AND THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND QUESTABOX. QUESTABOX WOULD NOT BE ABLE TO PROVIDE THE WEBSITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
13.4 User Interactions and Release.
- (a) User Disputes. QUESTABOX is not responsible for the actions, content, information or data of other third parties, including other Users. You are solely responsible for your interactions with other users of the Services, and any other parties with whom you interact through the Service. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline interaction with any other person. We reserve the right, but have no obligation, to become involved in any way with these disputes.
- (b) Release. If you have a dispute with one or more Users, you release us (and the QUESTABOX Parties) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use, privacy or data. If you are a California resident, you waive your rights under California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.” And, if you are not a California resident, you waive your rights under any applicable statutes of a similar effect, to the fullest extent permissible under applicable law.
14. Miscellaneous (Including Dispute Resolution and Arbitration).
14.1 Notice. QUESTABOX may provide you with notices, including those regarding changes to the Terms, by email, regular mail, postings on the Services, or other reasonable means. Notice will be deemed given twenty-four hours after email is sent, unless QUESTABOX is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Services. In such case, notice will be deemed given three days after the date of mailing. Notices posted on the Services are deemed given 30 days following the initial posting. Any notices directed to QUESTABOX shall be sent by first class U.S. Mail to QUESTABOX at 4585 Stevens Creek Blvd. Ste. 201, Santa Clara, CA 95051 and via e-mail to help@questaboxcom.
14.2 Waiver. The failure of QUESTABOX to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any provision of the Terms will be effective only if in writing and signed by QUESTABOX.
14.3 Governing Law. The Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law that would cause the application of the laws of any other jurisdiction.
14.4 Dispute Resolution and Arbitration. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS. BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE.
- (a) Generally. In order to expedite and control the cost of disputes, QUESTABOX and you agree that any legal or equitable claim, dispute, action or proceeding arising from or related to your use of the Services or these Terms (“Dispute”) will be resolved as follows to the fullest extent permitted by law:
- (b) Notice of Dispute. In the event of a Dispute, you or QUESTABOX must give the other a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and a proposed solution (a “Notice of Dispute”). You must send any Notice of Dispute by first class U.S. Mail to QUESTABOX at 4585 Stevens Creek Blvd. Ste. 201, Santa Clara, CA 95051 and via e-mail to help@questaboxcom. QUESTABOX will send any Notice of Dispute to you by first class U.S. Mail to your address if QUESTABOX has it, or otherwise to your e-mail address. You and QUESTABOX will attempt in good faith to resolve any Dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or QUESTABOX may commence arbitration.
- (c) Binding Arbitration. Any Dispute which has not been resolved by negotiation as provided herein within sixty (60) days or such time period as you and QUESTABOX may otherwise agree, shall be finally resolved by binding arbitration as described in this Section 14.4. You are giving up the right to litigate (or participate in as a party or class member) all Disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. The place of arbitration shall be Santa Clara County, California. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
- (d) Class Action Waiver. Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither you nor QUESTABOX will seek any Dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
- (e) Arbitration Procedures. Any arbitration will be conducted by JAMS under the JAMS Comprehensive Arbitration Rules and Procedures (“JAMS Rules”) in effect at the time the Dispute is filed. You may request a telephonic or in-person hearing by following the JAMS Rules. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. To the extent the forum provided by JAMS is unavailable, QUESTABOX and you agree to select a mutually agreeable alternative dispute resolution service and that such alternative dispute resolution service shall apply the JAMS Rules. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief to you only individually, and only to the extent required to satisfy your individual claim.
- (f) Arbitration Fees. Whoever files the arbitration will pay the initial filing fee. If QUESTABOX files, then QUESTABOX will pay; if you file, then you will pay unless you get a fee waiver under the applicable arbitration rules. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
- (g) Filing Period. To the extent permitted by law, any Dispute under these Terms must be filed within one (1) year in an arbitration proceeding. The one-year period begins when the events giving rise to the Dispute first occur. If a Dispute is not filed within one year, it is permanently barred.
- (h) Venue. In the event that any Dispute cannot be resolved by binding arbitration in accordance with this Section 14.4, you agree that such Dispute will be filed only in the state or federal courts in and for Santa Clara County, California, and each of you and QUESTABOX hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purpose of litigating any such action. Notwithstanding this, QUESTABOX shall still be allowed to apply for injunctive or other equitable relief to protect or enforce its intellectual property rights in any court of competent jurisdiction.
14.5 Severability. If any provision of the Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
14.6 Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you without QUESTABOX’s prior written consent, but may be assigned by QUESTABOX without consent or any restriction. Any assignment attempted to be made in violation of the Terms shall be null and void.
14.7 Survival. Upon termination of the Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
14.9 Disclosures. The Services are hosted in the United States, and the services provided hereunder are offered by QUESTABOX: 4585 Stevens Creek Blvd. Ste. 201, Santa Clara, CA 95051; firstname.lastname@example.org.