Thank you for your interest in Qwiki, and for taking the time to familiarize yourself with our terms and policies:
Qwiki, Inc. (“Qwiki” or “we”) provides this Privacy Policy to inform you of our practices and policies regarding the collection, use and disclosure of personal information we receive from you.
We may collect information about you and your use of our website, and any products, software, data, content, and services offered on, from or through our website (collectively, the “Service”). We may collect personally identifiable information such as your name, email address, IP address, demographic and biographical information as well as other information that does not personally identify you. The following sections describe some of the ways in which we may collect information:
We may provide you with the opportunity to register or subscribe with us. If you register or subscribe, you may provide information to us and we collect a wide variety of information about you. Such information may include personally identifiable information such as your name, email address, IP address, demographic and biographical information and other information.
Like many websites, we may automatically gather certain information about our Service traffic and store it in log files. We may also use third parties to gather such information. This information may include IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp, and clickstream data.
We may use cookies to keep track of some types of information while you are using our Service. A cookie is a small text file that is stored on a user’s computer for record-keeping purposes. We may also use cookies to automatically collect information about your online activity on our Service, for example, which web pages you browsed, which links you clicked on, or which searches you conducted on our Service. If you choose to decline our cookies, you assume all responsibility for any resulting loss of functionality or access.
We may employ and our third party partners may employ a software technology called web beacons, also referred to as clear GIFs or pixel tags, that help manage content on the Service by tracking what content is effective. Web beacons are tiny graphics with a unique identifier, similar in function to cookies, and are used to track the online movements of users in order to further personalize our Service for our users and to collect a limited set of information about our users. In contrast to cookies, which are stored on a user’s computer hard drive, web beacons are embedded invisibly on web pages and are about the size of the period at the end of this sentence. We also may include web beacons in advertisements or promotional or other e-mail messages or to determine whether messages have been opened or acted upon. This allows us to gauge the effectiveness of certain communications and the effectiveness of our marketing campaigns.
In general, we may use information that we collect about you to: (i) provide, improve and customize the Service; (ii) conduct research and analysis about your activities on the Service, including your use of, or interest in, different parts of our Service, or products or services offered by third parties; (iii) provide customer support and manage your account; (iv) provide you information via e-mail, postal mail, telephone and/or mobile devices about the Service or products or services offered by us or third parties; (v) monitor surveys, discussion boards, forums and/or chat rooms provided to you on the Service from us or a third party; (vi) verify your eligibility and deliver prizes in connection with contests; (vii) develop and provide content and advertising from us or third parties customized based on your activity and/or interests; (viii) enforce this Privacy Policy, the Terms of Service and other applicable terms and conditions; (ix) manage our business; and (x) perform functions and activities as otherwise described to you at the time of collection of information.
We may send you information on products, services, special deals, and promotions. We may also use your name and email address to send newsletters to you.
We will send you strictly service-related announcements on rare occasions when it is necessary to do so. For instance, if our Service is temporarily suspended for maintenance, we might send you an email.
We may communicate with you in response to your inquiries and to manage your account. We may communicate with you by email or telephone.
We may store information that we collect through cookies, log files, web beacons, and/or third party sources to create a “profile” of your preference and activities. We may tie your personally identifiable information to information in the profile, in order to improve and customize our Service and provide tailored promotions and marketing offers for you.
We may purchase marketing data from third parties and add it to our existing user database, to better target our advertising and to provide pertinent offers in which we think you would be interested. To enrich our profiles, we may tie this information to the personally identifiable information we have.
We may share aggregated demographic information about our user base with our partners and advertisers. We may combine non-personal information we collect with additional non-personal information collected from other sources. We also may share aggregated information with third parties, including advisors, advertisers and investors, for the purpose of conducting general business analysis. This information does not identify individual users and may be used to develop the Service and to target content and advertising.
Advertisements may be offered through our Service by our advertising partners. We may share usage, traffic and other information with our advertising partners for the purpose of targeting advertisements through the Service.
Our advertising partners may use cookies and web beacons on the Service, which allow them to recognize a user’s cookie when a user uses the Service and to measure advertising effectiveness.
We may share your personal information with our authorized service providers that may be associated with us to perform functions on our behalf. These functions may include providing customer service, performing business and marketing analysis, supporting and improving the functionality of our Service, and providing or maintaining contests, surveys and other features offered through our Service. These service providers may have access to information about you, including personally identifiable information, that they need to perform their functions.
We may partner with third parties to offer you surveys, contests, products and services through our Service. When you participate in such surveys or contests, or purchase such products and services, you authorize us to share information about you, including personally identifiable information, with such third parties. If you have any questions or concerns regarding how such third parties use your information, please consult the applicable third party’s privacy policy. You agree that we will not responsible or liable for any loss or damage incurred in connection with our partnership with such third parties, their activities on our Service, and the sharing of your information with such third parties.
We reserve the right to, and you acknowledge and agree that we may, disclose your personally identifiable information as required by law and when we believe, in our sole discretion, that disclosure is reasonable to protect our or a third party’s rights; to comply with a judicial proceeding, court order, or legal process served on us or the Service; to assist in investigation, prosecution, prevention, or taking other action regarding illegal activity, fraud or other wrongdoing, or suspected illegal activity, fraud or other wrongdoing; to protect a user’s or a third party’s health or safety, such as when harm or violence against any person (including you) is threatened; or in connection with an actual or proposed corporate transaction, such as a merger, acquisition, consolidation, asset sale, divestiture, or insolvency proceeding involving all or part of our business or assets.
Notwithstanding any other provision of this Privacy Policy or our Terms of Service, we reserve the right, but have no obligation, to disclose any your information, including personally identifiable information, if in our sole discretion, we suspect or have reason to suspect, that the information involves a victim of physical, psychological or other abuse, including without limitation elder abuse, child abuse, spousal abuse, neglect, or domestic violence. If we deem appropriate, in our sole discretion, that some information should be disclosed to authorities, we reserve the right to do so. Such authorities may include law enforcement agencies, child protection agencies, or court officials. You hereby acknowledge and agree that we have the right to make such disclosure in our sole discretion.
The Service may contain links to other websites that are not owned or controlled by Qwiki. Please be aware that we are not responsible for the privacy policies or the content of such other websites.
We encourage you to be aware when you leave our Service and to read the privacy policies of each and every website that collects personally identifiable information.
This Privacy Policy applies only to information collected by us.
We do not knowingly collect personal information from children under the age of 13, and in compliance with the Children’s Online Privacy Protection Act, any information we may receive from users we know to be under the age of 13 will be purged from our database.
Any information we collect may be transferred to, stored and processed in servers located in the United States and other countries around the world. This Privacy Policy is intended to cover collection of information on Service from residents of the United States. If you are using our Service from outside the United States, you hereby acknowledge that your information may be transferred to, stored and processed in the United States where our servers may be located. Other countries may have more comprehensive data protection and privacy laws than those of the United States. By using the Service, you understand that your information may be transferred to our facilities and those third parties with whom we share it as described in this Privacy Policy.
Qwiki may, in its sole discretion, from time to time, modify or revise this Privacy Policy without notice, and you agree to be bound by such modifications or revisions. The most current version of this Privacy Policy can be viewed at our website. Once posted, our amended Privacy Policy will take become effective on a going forward basis as provided in the Terms of Service, except that (i) unless you agree otherwise, we will use your personally identifiable information in the manner described in the Privacy Policy in effect when we received that information and (ii) if you do not agree with any changes to the Privacy Policy, you may terminate your account and cease use of the Service. Your continued use of the Service after revised Privacy Policy has become effective indicates that you have read, understood and agreed to the current version of the Privacy Policy.
© Copyright 2011 Qwiki, Inc.
Last updated: November 30, 2011
Welcome to Qwiki, a revolutionary new search tool that enables you to discover more about a variety of topics through a unique and transformative audiovisual reference tool that we call a “Qwiki.” Our mission is to provide a new way of searching for and receiving information and content. If any user wishes to learn more about or view any content available through a Qwiki search, that user may click on the window pane containing that content (a “Link”), which Link will show the source of that content and provide the user the ability to link directly back to the source of that content, driving traffic to source websites, In this way, we provide a transformative way for you to search for and receive information which will enhance your experience and drive traffic to the websites of any content that appears in any Qwiki search.
We firmly believe that any content accessible through a Qwiki search is made available in a manner that is fair, beneficial for the underlying website or content provider, and consistent with and respectful of all rights of content owners. However, we also value our community and respect the intellectual property rights of others, and we do not wish to convey the benefits of the Qwiki service to those who do not wish to receive it. So, if you are an owner of content that is available in a Qwiki search result, or if you believe that any content available through the Service infringes your copyrights, please provide us with a written notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Designated Copyright Agent with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
The Qwiki Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows: copyright@qwiki.com. For clarity, only DMCA notices should go to the Qwiki Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Qwiki customer service through support@qwiki.com. You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.
Please keep in mind that we are providing this procedure for take-downs merely as a courtesy to the community. By making this procedure available or taking down any content upon request, we are not acknowledging in any way that Qwiki or our service or the availability of any content on our service infringes or violates any rights of any third party.
Please read these Terms of Service (“Terms of Service”) carefully. These Terms of Service are a legally binding agreement between you and Qwiki, Inc. (“Qwiki” or “we”). If you use the “Publisher” feature of the Service, then the Publisher Terms will also apply, and will be deemed incorporated into these Terms by reference.
BY REGISTERING FOR AN ACCOUNT, OR OTHERWISE USING, ACCESSING OR VISITING THE QWIKI WEBSITE, CURRENTLY LOCATED AT WWW.QWIKI.COM, OR ANY PRODUCTS, SOFTWARE, DATA, CONTENT OR SERVICES PROVIDED ON, FROM, OR THROUGH THE QWIKI WEBSITE (COLLECTIVELY, THE “SERVICE”), YOU AGREE TO ABIDE BY, AND INDICATE YOUR ACCEPTANCE TO, THESE TERMS OF SERVICE, AS WELL AS OUR PRIVACY POLICY, AVAILABLE ON OUR WEBSITE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR THE PRIVACY POLICY, THEN DO NOT USE THE SERVICE.
Qwiki may, in its sole discretion, from time to time, modify or revise these Terms of Service or the Privacy Policy without notice. The most current version of these Terms of Service and the Privacy Policy can be viewed at our website, will indicate the date posted, and will be effective immediately upon posting, except as follows: in the event any such modification materially alters your rights hereunder, we will attempt to notify you directly through a message sent to the email address you have provided to Qwiki, if any, or a pop-up window or other notification when you access or use the Service for the first time following a change, b) such materially modified Terms of Service and / or Privacy Policy will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you, and c) disputes between us will be resolved in accordance with the version of the Terms of Service in effect at the time the dispute arose. . Your use of the Service following any amendment of these Terms of Service and/or the Privacy Policy becomes effective will signify your assent to and acceptance of the revised terms.
The Service is intended solely for persons who are 13 or older. Any access to or use of the Service by anyone under 13 is expressly prohibited. By using the Service, you represent and warrant that you are 13 or older. If you are under 13 years of age, please do not use the Service.
(a) The Service (including the underlying software), and any text, images, graphics, sounds, music, videos, audiovisual presentations, data, and other materials which is available on or through the Service (the “Content”) may be protected by intellectual property and other laws of the United States and foreign countries. Except as expressly provided, Qwiki and its licensors reserve all right, title and interest in and to the Service and the Content, including all associated intellectual property rights. You do not develop or obtain any ownership rights in any Qwiki materials or services or parts thereof by virtue of your use of the Service.
(b) You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or the Content.
(c) We reserve the right, in our sole discretion, to modify, discontinue or terminate any part of the Service or the Content at any time without prior notice. You agree that we shall not be liable to you or any third party for any such modification, discontinuance or termination. In addition, we reserve the right to terminate your access to any part of the Service or the Content for any reason at any time.
Qwiki hereby grants you permission to access and use the Service and the Content, subject to these Terms of Service, provided that:
(a) You may access them for your information and personal use only, and solely as intended through the provided functionality of the Service and as permitted under these Terms of Service.
(b) Unless expressly permitted, you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service or the Content without Qwiki’s prior written authorization, unless and solely to the extent Qwiki makes available the means for embedding any part of the Service or the Content.
(c) Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Service or the Content.
(d) Unless expressly permitted, if you embed any part of the Service or the Content, you may not alter, modify or block any portion or functionality of the embedded part, including, without limitation, any advertising materials and any links back to the Qwiki website.
(e) You agree not to bypass any security or other features of the Service designed to control the manner in which the Service is used (including without limitation by violating any rules identified in any applicable robots.txt file), harvest or mine Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage.
(f) You agree not to decipher, reverse engineer, decompile or disassemble the Service or the Content, or the software used to provide the Service or the Content, in whole or in part, or authorize a third party to do so.
(g) You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service or the Content, or any portion thereof, unless and solely to the extent Qwiki makes available the means for embedding any part of the Service or the Content.
(h) You agree not to access, tamper with, or use non-public areas of the Service, Qwiki’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Qwiki’s providers.
(i) You agree not to use or access the Service or the Content for any commercial purpose, including, without limitation, the sale of advertising, sponsorships or promotions.
Notwithstanding the above, any Content that is made available in connection with the Service pursuant to the terms and conditions of third party licensors of such Content (including, without limitation, the “Creative Commons” or other similar licenses) shall be licensed solely pursuant to such terms and conditions, and the above terms and conditions shall not apply to the extent inconsistent with or contrary to such third party terms and conditions.
If and to the extent that you elect to submit any Content to the Service (“User Content”):
(a) You agree that you are solely responsible for, and assume all liability and consequences regarding, the User Content you submit.
(b) You hereby grant Qwiki a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable and transferable license, without obligation, to use, copy, reproduce, alter, modify, create derivative works of, distribute, publish, display, perform, transmit, stream, broadcast or otherwise exploit your User Content in connection with the Service and Qwiki’s (and its successors’ and affiliates’) business. You agree that Qwiki is not obligated to publish any User Content, and reserves the right to remove any User Content from the Service at any time for any reason.
(c) You represent and warrant that you either are the sole and exclusive owner of all User Content that you submit to the Service, or you have all rights, licenses, consents and releases that are necessary to grant to Qwiki the rights in such User Content as contemplated under these Terms of Service.
(d) You represent and warrant that neither the User Content you submit to the Service nor your accessing, posting, submission or transmittal of such User Content or Qwiki’s exploitation of such User Content (or any portion thereof) pursuant to the rights granted to Qwiki under these Terms of Service will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, constitute defamation or slander, or result in the violation of any applicable law or regulation.
(e) You agree not to submit User Content that: (1) is defamatory, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promotes discrimination, bigotry, racism, or hatred, as determined by Qwiki in its sole discretion; or (2) introduces viruses, time-bombs, worms, cancelbots, trojan horses and/or other harmful code.
We welcome and encourage you to provide feedback, comments and suggestions to us regarding the Service (“Feedback”). You hereby agree that all Feedback provided to us isprovided on a non-confidential basis (irrespective of anything to the contrary you may include in any communication accompanying or associated with such Feedback), and by providing any Feedback, you agree to grant and hereby to grant to Qwiki and its successors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable and transferable license to use, copy, reproduce, alter, modify, create derivative works of, distribute, publish, display, perform, transmit, stream, broadcast or otherwise exploit your Feedback without limitation.
The Service and/or the Content contains links to third party web sites. These links are provided to you as a convenience, and Qwiki is not responsible for the content of any linked website. Qwiki does not endorse or accept any responsibility or liability for the content or use of such linked websites. In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by Qwiki of that third party or of any product or service provided by a third party.
THE SERVICE AND THE CONTENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. YOU AGREE THAT YOUR USE OF THE SERVICE AND THE CONTENT SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, QWIKI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON- INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, IN CONNECTION WITH THE SERVICE, THE CONTENT, AND YOUR USE THEREOF. QWIKI MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE OR THE CONTENT AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE OR THE CONTENT, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (IV) ANY BUGS, VIRUSES, TIME-BOMBS, WORMS, CANCELBOTS, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE OR THE CONTENT BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. QWIKI DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND QWIKI WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
You agree to defend, indemnify, and hold Qwiki, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (i) any User Content you submit to the Service, (ii) your access to or use of the Service, or the Content, or (iii) your violation of these Terms of Service.
IN NO EVENT SHALL QWIKI, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, THE SERVICE, OR ANY CONTENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF QWIKI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
IN NO EVENT SHALL QWIKI’S AGGREGATE LIABILITY ARISING OUT IN ANY WAY RELATING TO THIS AGREEMENT, THE SERVICE, OR ANY CONTENT EXCEED ONE HUNDRED U.S. DOLLARS ($100). THIS LIMITATION IS CUMULATIVE AND NOT PER CLAIM.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, LIABILITIES, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND DNA GAMES, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND QWIKI, QWKI’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT QWIKI WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
These Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns, provided that you may not assign or transfer these Terms of Service, by operation of law or otherwise, without Qwiki’s prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. Qwiki may freely assign these Terms of Service.
a) Generally. In the interest of resolving disputes between you and Qwiki in the most expedient and cost effective manner, you and Qwiki agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Qwiki are each waiving the right to a trial by jury or to participate in a class action.
b) Exceptions. Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
c) Arbitrator. Any arbitration between you and Qwiki will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Qwiki.
d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Qwiki's address for Notice is: [Qwiki, Inc., ADDRESS FOR NOTICE]. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Qwiki may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Qwiki shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Qwiki shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Qwiki in settlement of the dispute prior to the arbitrator’s award.
e) Fees. In the event that you commence arbitration in accordance with these Terms, Qwiki will reimburse you for your payment of the filing fee, unless your claim is for greater than $5,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $5,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Qwiki for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f) No class actions. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Qwiki agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g) Modifications. In the event that Qwiki makes any future change to this arbitration provision (other than a change to the Qwiki's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Qwiki's address for Notice, in which case your account with Qwiki shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
h) Enforceability. If only Subsection (f) of this Section or the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in the “General” Section, below, shall govern any action arising out of or related to these Terms.
These Terms of Service shall be governed by the laws of the State of California without regard to its principles of conflicts of law. To the extent that any lawsuit is permitted hereunder, each party expressly consents to the jurisdiction of the state and federal courts located in the State of California to resolve any dispute arising from these Terms of Service and waives any defense of inconvenient or improper forum. These Terms of Service do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party is authorized to assume or create any obligation or responsibility on behalf of, or in the name of, the other or to bind the other in any manner. Notices delivered under these Terms of Service must be given in writing (such as, via email) and will be effective when received. These Terms of Service (including the Content Policy, Publisher Terms of Service, and our Privacy Policy, and any other policies and guidelines promulgated by Qwiki from time to time) hereby, supersede all previous communications, understandings and agreements (whether oral or written). The headings and captions used in these Terms of Service are used for convenience only and are not to be considered in construing or interpreting these Terms of Service. If any part of these Terms of Service is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Qwiki’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
If you have any questions about these Terms of Service, please contact Qwiki at support@qwiki.com.
© Copyright 2011 Qwiki, Inc.
Last Updated: November 30, 2011
PLEASE READ THIS QWIKI EDITOR PUBLISHER TERMS OF SERVICE CAREFULLY BEFORE PROCEEDING. ACCESS TO AND USE OF THE QWIKI EDITOR IS PROVIDED SUBJECT TO THESE TERMS AND CONDITIONS, IN ADDITION TO THE QWIKI TERMS OF SERVICE, INTO WHICH THESE TERMS OF SERVICE ARE INCORPORATED BY REFERENCE (COLLECTIVELY, THE “TERMS”). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS REGISTRATION FOR AN ACCOUNT, OR ANY USE OR ACCESS OF THE QWIKI EDITOR CONSTITUTES ACCEPTANCE OF THE APPLICABLE TERMS. CAPITALIZED TERMS USED, BUT NOT DEFINED BELOW HAVE THE MEANING GIVEN TO THEM ELSEWHERE IN THE TERMS.
“User Qwiki” means a brief, interactive, rich-media audio and visual information experience that utilizes images, videos, animations and other assets to present content in our proprietary format.
“Qwiki Editor” means the platform used by publishers (you) to create User Qwikis, and any updates, enhancements or upgrades thereto. For the avoidance of doubt, the Qwiki Editor is a part of the Service, as that term is used in the Terms.
You and Qwiki agree as follows:
Subject to your complete and ongoing compliance with the Terms, Qwiki grants to you permission to access and use the Qwiki Editor for the sole purpose of creating and publishing User Qwikis through the Service. Any rights not expressly granted to you by Qwiki in this Agreement are reserved. You agree that Qwiki is not obligated to publish any User Qwikis, and reserves the right to remove any User Qwikis from the Service at any time for any reason.
The foregoing license gives you limited rights to use Qwiki Editor. You do not become the owner of, and Qwiki and its suppliers retain title to the Qwiki Editor and all copies thereof, and all User Qwikis created through the use of the Qwiki Editor (subject to your ownership rights in individual Content elements you upload to the Service through the Qwiki Editor). All rights not specifically granted in this Agreement, including federal and international copyrights, are reserved by Qwiki. You acknowledge and agree that Qwiki holds all right, title and interest in and to all tangible and intangible incidents of the Qwiki Editor, including any and all patents, copyrights and trade secrets pertaining thereto, and that this Agreement conveys to you only a limited right to access and use the Qwiki Editor.
Your account is personal to you, and you may not allow any third party to access your account. As you will be responsible for all activity that occurs under your account, you should preserve the confidentiality of your username and password, and any device that you use to access the Qwiki Editor. If you have any reason to believe that your account has been compromised or accessed by a third party, you agree to immediately notify Qwiki by e-mail to support@qwiki.com. You are solely responsible for losses incurred by Qwiki and others (including other users) due to any unauthorized use of your account that occur prior to notifying Qwiki that your account was compromised.
A. THE QWIKI EDITOR PROVIDED HEREUNDER IS PROVIDED “AS IS” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED AND DISCLAIMED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE. NO TECHNICAL SUPPORT IS OFFERED BY QWIKI AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE QWIKI EDITOR AND YOUR USER QWIKIS – INCLUDING RESPONSIBILITY FOR ANY DAMAGES CAUSED BY ERRORS, INACCURACIES OR OMISSIONS, COMMUNICATIONS LINE INTERRUPTION OR FAILURE, UNAUTHORIZED ACCESS, THEFT, SYSTEMS FAILURE AND OTHER OCCURRENCES RESULTING FROM YOUR USE OF THE QWIKI EDITOR – IS BORNE BY YOU. QWIKI SHALL IN NO WAY BE RESPONSIBLE FOR ANY DAMAGES CAUSED TO YOUR COMPUTER HARDWARE, DATA OR SYSTEM OR TO ANY DATA ON YOUR SYSTEM ARISING FROM THE USE OF THE QWIKI EDITOR.
B. QWIKI SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY RELATING TO THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE. IN NO EVENT WILL PROVIDER OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE PERFORMANCE OF THIS AGREEMENT ON BEHALF OF QWIKI, INCLUDING ITS EMPLOYEES, AFFILIATES, AGENTS, PARTNERS, REPRESENTATIVES, BE LIABLE FOR ANY DIRECT OR INDIRECT, SPECIAL, RELIANCE, INCIDENTAL, EXEMPLARY, COVER OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUE, LOST BUSINESS OPPORTUNITIES, LOST SAVINGS, LOST DATA, OR COMPUTER FAILURE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, LIABILITIES, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND DNA GAMES, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND QWIKI, QWKI’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT QWIKI WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
You are responsible for all content you publish using the Qwiki Editor. By using the Qwiki Editor to publish User Qwikis, you represent and warrant to Qwiki that you own all intellectual property rights (or have the appropriate license) in the content and you grant to Qwiki a worldwide, irrevocable, royalty-free, non-exclusive, license (with full rights to sublicense) to use, reproduce, distribute, publicly display, transfer, transmit, distribute and publish your User Qwikis (including distributing User Qwikis and/or storing User Qwikis) in connection with the Service and Qwiki’s (and its successors’ and affiliates’) business.
It is impossible to list all the forms of prohibited conduct. Qwiki will fully cooperate with all law enforcement requests or requirements related to your use of the Qwiki Editor. We reserve the right to determine what conduct is prohibited and to terminate your access to the Qwiki Editor. The following are illustrative only and do not constitute an exhaustive list:
a. Creating User Qwikis that violate the legal rights of others or otherwise violate the law in any way; this includes illegally uploading files, making false statements, including the use of false identities;
b. Transmitting information that may affect the operation of another person’s system, such as uploading files that contain viruses or corrupted files;
c. Creating User Qwikis for advertising or other commercial purposes;
d. Interference with the operation of the Qwiki Editor, including overloading.
You hereby agree to indemnify, defend and hold Qwiki and all of our shareholders, officers, directors, owners, employees, agents, affiliates, licensors and users (collectively, the “Indemnified Parties”) harmless from and against any and all liability, losses, costs, and expenses (including attorneys’ fees) incurred by any Indemnified Party in connection with any claim directly or indirectly arising from your User Qwikis or your use of the Qwiki Editor in any way.
Last Updated: November 30, 2011
