Qush Security end user license agreement

Last modified: Feb 1, 2022
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PLEASE READ THESE LICENCE TERMS CAREFULLY. These terms represent the agreement between you and Qush (“we”, “us”), in relation to the software provided by us and all associated services (“Product”). By installing, or using the Product, you agree to be bound by the terms set out herein. If you do not agree to these terms, please do not install or use the Product. If you are entering into this agreement on behalf of another legal entity, you represent that you have the authority to bind such entity to these terms and conditions (“customer”). if you do not have such authority or do not agree with these terms and conditions, you must not accept this agreement and the customer may not use the product(s).

Grant of license

On the terms set out herein, we, Qush, grants you a license to use:

  • The Product
  • The related electronic documentation (Documentation)

during the Subscription Term specified in the applicable Order.

Evaluation products

This Agreement shall also apply to (i) “Evaluation Software” (meaning the copy of Software which contains this Agreement, including any copies made by or on your behalf, and all Documentation for the foregoing, which are licensed for a limited duration for the specific purpose of evaluation prior to making a final decision on procurement); and (ii) “Beta Test Products” (meaning the Software that is in a beta phase, including any related Documentation, that we may provide to you under this Agreement, subject to the remainder of this Section. “Evaluation Products” means Evaluation Software and Beta Test Products.

The particular Evaluation Products, period of use, Installation Site, and other transaction-specific conditions shall be as mutually agreed between us and you and recorded in the form of a schedule.

Notwithstanding any deviating terms in this Agreement, the period of use shall be thirty (30) days from date of delivery of the Evaluation Products, unless otherwise agreed in a schedule. All licenses for Evaluation Software expire at the end of the evaluation period.

You shall either delete all copies of the Evaluation Software and Beta Test Products or return the Evaluation Products at the end of the evaluation or loan period, or when sooner terminated by us for convenience whichever occurs first. You shall bear the risk of loss and damage for return of physical media and Evaluation Products, if any, and de-installation.

You may use Evaluation Products free of charge, but solely for the purpose of evaluation and not in a production environment.

Without prejudice to any other limitations on our liability set forth in this Agreement (which shall also apply to Evaluation Products), Evaluation Products are provided “AS IS” and any warranty or damage claims against us in connection with Evaluation Products are hereby excluded, except in the event of fraud or our willful misconduct.

Unless otherwise specifically agreed in writing by us, we do not provide maintenance or support for any Evaluation Products. YOU RECOGNIZE THAT EVALUATION PRODUCTS MAY HAVE DEFECTS OR DEFICIENCIES WHICH CAN NOT, OR MAY NOT BE CORRECTED BY US. We shall have no liability to you for any action (or any prior related claims) brought by or against you alleging that your sale, use or other disposition of any Evaluation Products infringes any patent, copyright, trade secret or other intellectual property rights. In the event of such an action, we retain the right to terminate this Agreement and take possession of the Evaluation Products. THIS SECTION STATES OUR ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY EVALUATION PRODUCTS OR ANY PART OF IT OR ITS OPERATION.

You shall treat the Beta Test Products, including the nature and features thereof and materials relating thereto and the results of your testing and evaluation of the Beta Test Products as our Confidential Information. You agree to provide Us with reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports, enhancement requests and test results, based on Your evaluation and testing of the Products (“Feedback”), and that any feedback or ideas You or any of Your employees, contractors or customers provided to us regarding the Beta Test Products or any suggested improvements thereto will be the exclusive property of Qush. You understand that we may never release the Beta Test Products as a commercial product.

Restrictions and limitations

This Agreement shall also apply to (i) “Evaluation Software” (meaning the copy of Software which contains this Agreement, including any copies made by or on your behalf, and all Documentation for the foregoing, which are licensed for a limited duration for the specific purpose of evaluation prior to making a final decision on procurement); and (ii) “Beta Test Products” (meaning the Software that is in a beta phase, including any related Documentation, that we may provide to you under this Agreement, subject to the remainder of this Section. “Evaluation Products” means Evaluation Software and Beta Test Products.

The particular Evaluation Products, period of use, Installation Site, and other transaction-specific conditions shall be as mutually agreed between us and you and recorded in the form of a schedule.

Notwithstanding any deviating terms in this Agreement, the period of use shall be thirty (30) days from date of delivery of the Evaluation Products, unless otherwise agreed in a schedule. All licenses for Evaluation Software expire at the end of the evaluation period.

You shall either delete all copies of the Evaluation Software and Beta Test Products or return the Evaluation Products at the end of the evaluation or loan period, or when sooner terminated by us for convenience whichever occurs first. You shall bear the risk of loss and damage for return of physical media and Evaluation Products, if any, and de-installation.

You may use Evaluation Products free of charge, but solely for the purpose of evaluation and not in a production environment.

Without prejudice to any other limitations on our liability set forth in this Agreement (which shall also apply to Evaluation Products), Evaluation Products are provided “AS IS” and any warranty or damage claims against us in connection with Evaluation Products are hereby excluded, except in the event of fraud or our willful misconduct.

Unless otherwise specifically agreed in writing by us, we do not provide maintenance or support for any Evaluation Products. YOU RECOGNIZE THAT EVALUATION PRODUCTS MAY HAVE DEFECTS OR DEFICIENCIES WHICH CAN NOT, OR MAY NOT BE CORRECTED BY US. We shall have no liability to you for any action (or any prior related claims) brought by or against you alleging that your sale, use or other disposition of any Evaluation Products infringes any patent, copyright, trade secret or other intellectual property rights. In the event of such an action, we retain the right to terminate this Agreement and take possession of the Evaluation Products. THIS SECTION STATES OUR ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY EVALUATION PRODUCTS OR ANY PART OF IT OR ITS OPERATION.

You shall treat the Beta Test Products, including the nature and features thereof and materials relating thereto and the results of your testing and evaluation of the Beta Test Products as our Confidential Information. You agree to provide Us with reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports, enhancement requests and test results, based on Your evaluation and testing of the Products (“Feedback”), and that any feedback or ideas You or any of Your employees, contractors or customers provided to us regarding the Beta Test Products or any suggested improvements thereto will be the exclusive property of Qush. You understand that we may never release the Beta Test Products as a commercial product.

Change control

The Customer acknowledges that the Products and/or Solution may be subject to continuous development. Qush will be at liberty to change features and functionality of the Solution from time to time and without prior notice provided that such changes do not materially detract from the Solution.

Downgrade rights

You may install or use this version or an earlier version of the software except with regard to the warranty, which will only apply to the current version. If the earlier version includes different components, any terms for those components in the agreement that comes with the earlier version apply to your use of them. We are not obligated to supply earlier versions to you.

Rights and ownership

The Product or any Service may contain links to other independent websites which are not provided by us. Such independent sites are not under our control, and we are not responsible for and have not checked and approved their content or their privacy policies (if any).

We give no warranty with respect to the content or functionality of any such third-party sites and you shall be solely liable for your use of any of these.

Links to Third Party sites

The Product or any Service may contain links to other independent websites which are not provided by us. Such independent sites are not under our control, and we are not responsible for and have not checked and approved their content or their privacy policies (if any).

We give no warranty with respect to the content or functionality of any such third-party sites and you shall be solely liable for your use of any of these.

Acceptable use restrictions

You must:

  • Not use the Product or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the Product, any Service or any operating system;
  • Not infringe our intellectual property rights or those of any third party in relation to your use of the Product or any Service, including by the submission of any material (to the extent that such use is not licensed by these terms);
  • Not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Product or any Service;
  • Not use the Product or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
  • Not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.

Consent to use of data

You agree that Qush and its affiliates may collect and use technical information gathered as part of the product support services provided to you, if any, related to the Product. We may use this information solely to improve our products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.

 

Additional software and services

This Agreement applies to updates, supplements, add-on components, or Internet-based services components of the Product that we may provide to you or make available to you after the date you obtain your initial copy of the Product, unless they are accompanied by separate terms. We reserve the right to discontinue Internet-based services provided to you or made available to you through the use of the Product.

Limitations and exclusions of liability

The Product and the Services are provided for general information purposes only. They do not offer advice on which you should rely. We recommend that you back up any content and data used in connection with the Product, to protect yourself in case of problems with the Product or the Service. The Product and the Services have not been developed to meet your individual requirements.

If our provision of the Services or support for the Product or the Services is delayed by an event outside our control, then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event.

To the maximum extent permitted by applicable law and except as provided in the Guarantee, Qush and its suppliers shall not be liable for any damages whatsoever (including without limitation, damages for loss of business profits, business interruption, loss of business information or other pecuniary loss) arising out of the use or inability to use the Product, even if we have been advised of the possibility of such damages. In any case our entire liability under any provision of this Agreement shall be limited to the amount actually paid by you for the Product in the last 12 months. These limitations shall apply to the fullest extent possible.

Force majeure

Notwithstanding anything herein to the contrary, We shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control. Such acts shall include but not be limited to: an act of God; an act of war; a riot; an epidemic, fire, flood or other disaster; an act of government; and a strike or lockout.

Exclusion of warranties and other terms

Software warranty

We warrant that the software Product, when used as permitted under this Agreement and in accordance with the Documentation, shall operate substantially as described in the Documentation. We do not warrant that the operation of the software will be uninterrupted or error-free. We shall correct material Documentation errors by including such corrections in its next release of such Documentation.

If the software Product fails to conform to the foregoing warranty, we shall, as its sole obligation for breach of this warranty, correct any reproducible non-conformity in the software Product reported in writing to us by you during the applicable Subscription.

Non-warranted code

Certain portions of the code contained in the Product may be covered by open source or other commercial licenses and may be non-warranted and provided hereunder “as is” (“Non-warranted Code”). All warranties and conditions, express and implied, including warranties or conditions of title and non-infringement, and implied warranties or conditions of merchantability and fitness for a particular purpose are hereby disclaimed for all such Non-warranted Code.

To the maximum extent permitted by applicable law and subject to the guarantee above, Qush disclaims all warranties, conditions and other terms, either express or implied (whether by statute, common law, collaterally or otherwise) including but not limited to implied warranties of satisfactory quality and fitness for a particular purpose with respect to the Product and the Documents. Any implied warranties that cannot be excluded are limited to 90 days or to the shortest period permitted by applicable law, whichever is greater.

Confidentiality

You acknowledge that the existence of this Agreement, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that they have received or will receive in connection with this Agreement, is considered private and confidential (the “Confidential Information”). You will use reasonable diligence and in no event less than the degree of care which We use in respect to our own confidential and proprietary information of like nature, to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity. Such Confidential Information will exclude:

  • Information that is already in the public domain;
  • Information already known to the receiving party, as of the date of the disclosure, unless the receiving party agreed to keep such information in confidence at the time of its original receipt;
  • Information hereafter obtained by the receiving party, from a source not otherwise under an obligation of confidentiality with the disclosing party;
  • Information that the receiving party is obligated to produce under order of a court of competent jurisdiction, provided that the receiving party promptly notifies the disclosing party of such an event so that the disclosing party may seek an appropriate protective order.
 

Termination

Without prejudice to any other rights, we may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. In such event, you must destroy all copies of the Product and all of its component parts.

 

Third party rights

A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

Export restrictions

The Solution, Content, other technology that Qush makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. The Customer shall not permit access or use of any Solution or Content in a U.S. embargoed country or in violation of any U.S. export law or regulation.

Amendment and waiver

No amendment of this agreement will be valid unless it is in writing and signed by or on behalf of each of the parties by a duly authorised officer of each of the parties.

The failure to exercise, or delay in exercising, a right or remedy under this agreement will not constitute a waiver of the right or remedy, or a waiver of any other rights or remedies.

Severance

If any provision of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal the other provisions will remain in force and effect.

If any invalid, unenforceable or illegal provisions would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.

Entire agreement

This agreement constitutes the entire agreement between the parties and supersedes any arrangements, understanding or previous agreement between the parties relating to the subject matter of this agreement.

Each of Customer and Qush represents and warrants to the other that it has due authority to enter into and be bound by the terms of this agreement.

Governing law and jurisdiction

28.1. This agreement and any dispute or claim arising out of or in connection with it (including any non-contractual disputes or claims) are governed as follows:

If You are domiciled in:

You are contracting with:

Notices should be addressed to:

The governing law is:

The courts having exclusive jurisdiction are:

The United States of America, Canada, Mexico or a Country in Central or South America or the Caribbean

Qush Federal Inc. (if you are a Government department or agency)

Qush Federal Inc.

13800 Coppermine Road, Herndon, Virginia, 20171, USA

Attn: General Counsel

Delaware, USA

Delaware, USA

The United States of America, Canada, Mexico or a Country in Central or South America or the Caribbean

Qush Inc.
(if you are not a Government department or agency)

Qush Inc.

110 E 42nd St, Suite 815, New York, NY 10017, USA

Attn: General Counsel

Delaware, USA

Delaware, USA

UK or Rest of World

Qush Security Limited

Qush Security Limited

The Charter Building, Charter Place, Uxbridge UB8 1JG, UK

Attn: General Counsel

England

England