Qount
Terms of Service
Last updated: April 1, 2025
We are glad that you have selected the Services offered by Qount to automate and streamline your firm or entity operations. These Terms of Service (available at https://www.qount.io/company/terms-of-service, and as updated from time to time and effective when posted, "Terms") are a binding legal agreement between you and QountHQ Inc. ("Qount", "we" or "us" or “our”) with respect to the use of our qount.io website (“Website”), any subdomain of qount.io, content, updates, new releases, and services made available on our website (collectively, the "Services").
Acceptance of the Terms.
By accepting electronically (for example, clicking accept, purchasing a subscription, or signing in), installing, accessing or using the Services, you agree to these Terms. By indicating your acceptance of these Terms or by accessing or using the Services you acknowledge that you have read, understand and agree to these Terms and our Privacy Policy (as updated from time to time and effective when posted, and which is incorporated by reference in these Terms) and, if you are accepting these Terms on behalf of an entity or other organization, you represent and warrant that you have the legal authority to accept these Terms on behalf of such entity and to bind such entity. If you do not agree to these Terms or Privacy Policy, you may not use the Services. When “you” is used in these Terms, if these Terms are accepted by an individual, it refers to such individual, and if these Terms are accepted by an individual on behalf of an entity, it refers to such entity.
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION, AND ALSO CONTAINS A CLASS ACTION AND JURY TRIAL RIGHT WAIVER. Please carefully review Section 18 of these Terms for more information.
2. Modification of the Terms.
Qount reserves the right to change these Terms at any time and such changes will be effective upon the posting of modified Terms. It is your obligation to visit our Website and ensure that you have read and understood the most recent Terms available on the website. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes and the updated version, provided, however, that any amendment or modification to the: (i) arbitration, class action waiver, waiver of jury trial, or any other provisions applicable to dispute resolution (see the “Dispute Resolution” section below) shall not apply to any disputes arising prior to the applicable amendment or modification, or (ii) pricing and/or billing provisions shall not apply to any charges incurred prior to the applicable amendment or modification. You should review these Terms and the Privacy Policy frequently and ensure you understand all terms, conditions, and policies applicable to your access to and use of the Services.
3. Access to the Services.
You are only granted the right to use the Services and only for the purposes described in these Terms. Until termination of these Terms and as long as you meet any applicable payment obligations and comply with these Terms, Qount grants to you a limited, nonexclusive, non-transferable, non-sublicensable right and license to use the Services.
You and your Users shall not: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Services or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to any of the Services, or use any of the Services for time sharing or similar purposes for the benefit of any third party; (iii) remove any copyright or proprietary notices contained in the Services or any output thereof; (iv) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Services; (v) access the Services via any bot, web crawler or non-human user; (vi) access or use (or permit a third party to access or use) the Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes; or (vii) make any use of, or take any other action with respect to, the Services or any component thereof in a manner that violates applicable law or any provision of these Terms. You and your Users agree not to flood the Services with requests or otherwise overburden, disrupt, or harm the Services or our systems.
4. Users and Accounts.
“Users” means, for an individual, you, and for an entity, those individuals in your organization who you authorize to access to the Services. You agree that you will be responsible to determine, set up, modify, cancel and update the Users who get access and what level of access to the Services. You agree not to use, nor permit any third party to use, the Services or content in a manner that violates any applicable law, regulation or these Terms.
Where you are an entity, the following in this paragraph applies. You will designate one or more of your employees to serve as the “User Administrator” for Customer. The User Administrator shall solely be responsible for authorizing, issuing and deauthorizing a login name, password, and any other credentialing information (collectively, “Login Credentials”) to its Users, administering security profiles of Users, and inputting data regarding the Users. You agree that each User will be assigned unique Login Credentials, and that no Login Credentials will be shared or otherwise utilized by two or more individuals at any time. You are solely responsible for the security of Login Credentials issued to each User. You shall timely deauthorize all Users that are no longer authorized to have access to the Software. You agree to comply with the procedures specified by Qount from time to time regarding obtaining and updating passwords or other security measures for access to the Software. You are responsible for all acts and failures to act of your Users, and for ensuring that all Users are permitted by applicable law to access the Data. Qount shall have no responsibility or liability for any damage or loss caused by your failure to deauthorize a User (e.g., a terminated employee).
You must ensure that all usernames and passwords required to access the Services are kept secure and confidential. You must immediately notify Qount of any unauthorized use of your passwords or any other breach of security related to our Services, and you must take all other actions that Qount reasonably deems necessary to maintain or enhance the security of Qount's computing systems and your access to the Services. Qount is not liable for any loss or damage arising from you and your User's failure to protect usernames or passwords.
Access to and use of certain features of the Services requires you to register for an account. You agree to provide true, accurate, current, and complete information as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up to date. You are responsible and liable for all activities conducted through your account, regardless of who conducts those activities.
5. Intellectual Property.
The Services are protected by copyright, trade secret, and other intellectual property laws. The Services are owned by Qount and its licensors and are protected under copyright, trademark, and other applicable United States and international laws and treaties. You acknowledge that, as between You and Qount, Qount is and shall remain the sole owner of the Services, including, without limitation, all Intellectual Property Rights (as defined below) therein and thereto. You own all of your Data. However, your access to User Content (as defined below) is contingent on full and timely payment of the applicable subscription fees when due.
6. Subscription.
Qount offers the Services for a fee on a subscription basis ("Subscription") that may be fixed or variable. For example, a Subscription may be variable based on the number of Users or variable based on the number of campaigns, etc. Your subscription, whether paid monthly or annually, is for a period of one year and will continue unless and until you cancel your Subscription, or we terminate in accordance with these Terms.
Your one-year term may start on the effective date of your order/proposal in order to permit time for setup and installation of the Services. If so, the “Effective Billing Date” on your order/proposal shall be the date which your one-year term commences.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, and duties. You must pay with a valid credit card, debit card or bank account with sufficient funds to cover the payment due to Qount on a periodic basis.
The Subscription is billed in advance on a monthly or annual basis, depending on the payment plan you select. By starting a Subscription and designating a payment method, you authorize Qount to charge the applicable Subscription fee at the then-current rate to the credit/debit card on file for your account (the “payment method”) for any and all monies owing on your account, for as long as your account is open, regardless of whether or not you are logging into your account or using the Services. You acknowledge that the amount billed each Subscription period may vary due to promotional offers or upgrading or downgrading your Subscription, and you authorize Qount to charge your payment method for such varying amounts. When you enter or update the payment method, a temporary $1.00 transaction may appear as debited from the payment method. This temporary $1.00 transaction is a necessary authorization used to verify the payment method with your bank or financial institution and should disappear within about three days. If we are unable to collect payment from the payment method, for whatever reason, we reserve the right to continue to attempt to collect payment from the payment method until such time as payment collection is successful or the related account is deleted. In no event shall we be held responsible or otherwise liable for any fee(s) assessed to you, or any other person or party, by any bank or financial institution as a result of any billing action related to your account and/or the Services.
Either party may cancel your Subscription by sending written notice to the other party before the end of the then-current term. If your Subscription is canceled before the end of its then-current term, it will not renew for the next Subscription period; however, you are responsible for any and all charges in connection with your account for the full duration of your then-current Subscription term.
Upon renewal, we may increase your Subscription fees up to our then-current list price which may be found at www.qount.io/pricing. If this increase applies to you, we will notify you at least 30 days in advance of your renewal and the increased fees will apply at the start of the next Subscription period. If you do not agree to this increase, either party can choose to terminate your Subscription at the end of your current Subscription term by giving the notice required in this Subscription section.
Qount reserves the right to modify, terminate, or otherwise amend the Subscriptions we offer. There are no refunds or credits for partial subscription periods or upgrades/downgrades. You can cancel or downgrade the Services at any time. If you cancel the Services, you will not be charged from the next subscription period, depending on the plan you select. Canceling or downgrading your Services may cause the loss of Data input or imported into the Services by you or on your behalf, and may cause the loss of access to features of the Services or capacity of your account. Qount is not responsible or liable for any such loss of Data.
Use of the Services may be available through a compatible mobile device, Internet access and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates, and fees as well as the terms of your agreement with your mobile device and telecom provider.
7. Representations and Warranties.
Qount makes no warranties or representations of any kind with respect to the availability of third-party telecom services; access to the Services at any time or from any location; any loss, damage, or security intrusion of the telecom services, and any disclosure of information to third parties or failure to transmit any data, communications or setting connected with the Services.
You represent, warrant, and covenant that you: (a) are authorized to access all Data (including all User Content) that you input or import into the Services, including any such information or Data inputted or imported into the Services by any User; (b) own or otherwise have any and all necessary rights in and third party (including, but not limited to, taxpayer) consents relating to such information and Data, so that Qount’s receipt, possession, processing, disclosure, use, and retention of such information and Data (including any User Content) by us as permitted in these Terms does not and will not infringe, misappropriate, or otherwise violate the intellectual property rights or any privacy or other rights of any third party or violate any applicable law, rule, or regulation; (c) are authorized to access the processed information and data (including User Content) that is made available to you through your access to and use of the Services (whether that information and data is your own or that of anyone else); and (d) are acquiring the right to access and use the Services for the purposes of a business.
8. Disclaimer of Warranties.
YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, AND QOUNT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NEITHER QOUNT NOR ANY PERSON ASSOCIATED WITH QOUNT MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER QOUNT NOR ANYONE ASSOCIATED WITH QOUNT REPRESENTS OR WARRANTS THAT THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVICES THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. QOUNT DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
9. User Content.
Qount may enable you and your Users to submit, upload, post, share, display, store or transmit to other users (hereinafter, "post") information, materials, text, graphics, images, music, software, audio, video, works of authorship of any kind and other user-generated content (collectively, "User Content"). By making User Content available through your use of Services, you grant Qount a worldwide, royalty-free, non-exclusive license to host and use any User Content provided through your use of Services solely as required to provide the Services, for its internal research and business improvement purposes, or as permitted otherwise in these Terms. Qount is not responsible for the User Content you submit through the Services.
You may not post any User Content that is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy rights or right of publicity, or otherwise objectionable; constitutes doxxing or gaslighting, constitutes or promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; contains any material that could give rise to any civil or criminal liability under any applicable laws, rules, or regulations or that otherwise may be in conflict with these Terms; infringes upon, misappropriates, or otherwise violates any patent, trademark, copyright, moral right, or any other intellectual or industrial property rights ("Intellectual Property Rights") or other rights of a third party; encourages criminal conduct; contains false, misleading, fraudulent, or deceptive claims or content; gives the impression that it emanates from or is endorsed by Qount or any other person or entity, if this is not the case; or contains any virus, malware, spyware, or other harmful content or code.
When you post User Content, You represent and warrant that you are permitted to post such User Content. You are solely responsible for your User Content and acknowledge that Qount is not responsible for, and does not endorse any User Content. Qount does not have, and does not undertake, any obligation to prescreen, monitor, edit, or remove any User Content posted on or through the Services. However, Qount retains the right (but not the obligation), in its sole discretion and for any reason, to prescreen, monitor, edit, remove, or move User Content posted on or through the Services.
Qount may disclose any information necessary to satisfy its legal obligations, protect Qount or its Users, or operate the Services properly. Qount, in its sole discretion, may refuse to post, remove, or refuse to remove, any User Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of these Terms. You shall not, and shall not permit any of your Users or any other party to, engage in, solicit, or promote any activity that is objectionable or may be illegal, violates the rights of others, is likely to cause notoriety, harm or damage to the reputation of Qount or could subject Qount to liability to third parties.
Qount reserves the right to not authorize and may terminate your Subscription and use of the Services based on reasonable suspicion of your activities, business, products or services that are objectionable or promote, support or engage in any of the restricted uses as Qount deems objectionable.
10. Feedback and Data Use Rights.
10.1. If you or your Users provides or otherwise makes available to Qount any feedback, suggestions, recommendations, data, or other input regarding the Services or resulting from the use thereof (collectively, “Feedback”), Qount may freely use your Feedback. You assign to Qount all rights to the Feedback you provide to Qount in any way, including, but not limited to, in future modifications of the Services, other products or services, advertising or marketing materials. While we appreciate your interest in the Service and our business, Qount does not want and cannot accept any ideas, suggestions, or other Feedback Users consider confidential or proprietary. This is to avoid the possibility of future misunderstandings when projects independently developed by or on behalf of Qount might seem to others to be similar to users' own creative ideas, suggestions, or other feedback.
10.2. You acknowledge that, in order for Qount to deliver the Services at a high level of quality, Qount requires the ability to apply its algorithms, know-how and methodology. Accordingly, and notwithstanding anything herein to the contrary, you hereby grant to Qount permission to use, on an aggregated and de-identified basis, any User Content or other information that Qount learns, acquires, or obtains in connection with these Terms, for the purposes of providing and improving the Qount’s products and services, including the Services. You also grant to Qount permission to share or publish summary results relating to research data and to distribute or license such data to third parties.
10.3. Data Usage
10.3.1. Definitions. “Data” means all electronic data (including, but not limited to, Personal Information, as defined under applicable data privacy law) uploaded by you or your Users to the Services. “Derivative Information” means, collectively, (i) information derived or generated from or based on Data, but not containing Data, (ii) Data which has been de-identified or anonymized so that it no longer identifies a specific individual; and, (iii) Data which has been aggregated with other data but which no longer identifies a specific individual or you as an entity. “Usage Data” means statistical data related to you and your Users’ access to and use of the Services and data derived from it, that is used by Qount, including to compile statistical and performance information related to the provision of the Services and operation of the Qount software. “Qount Platform” means Qount’s proprietary online hosted software platform, website, operating systems, hardware, and other technical resources used by Qount to provide the Services.
10.3.2. Ownership of Data. As between you and Qount, you own all Data.
10.3.3. Use of Data. You hereby grant Qount and its contractors a limited, nonexclusive right and license to use all Data during these Terms internally: (a) to provide the Services; (b) to create, develop, test, train, correct, and inform software and algorithms, and product automation; (c) to develop and train artificial intelligence (AI) and/or machine learning models, develop, provide, and personalize our current and future Services provided to you and other clients, and gain insights with the help of AI, automated systems, and inferences, so that our Services can be more relevant and useful to you and others; (d) to develop, create, extract, compile, synthesize, analyze and commercialize statistics, analytics, metrics, reports, benchmarks, measures and other information; and, (e) to improve or develop existing or new Services, and, after expiration or termination as permitted herein.
10.3.4. Derivative Data and Usage Data. Qount shall irrevocably own all Derivative Data and Usage Data and may use or disclose it in any way it chooses, so long as neither you nor your Users or clients are identified or identifiable using reasonable means. This Section 10 shall survive any expiration or termination of these Terms.
10.3.5. Use of Data after Expiration or Termination. Upon your request within 30 days after the expiration or termination of these Terms, Qount will provide you with a copy of Data held by Qount. Upon expiration of such 30-day period, Qount shall convert your account to an inactive status. Qount may, but shall not be obligated to, delete all Data after your account converts to inactive status. The confidentiality obligations as are set forth in this Section 10 shall remain in force and effect at all times during the time you have an active account with us and these Terms are in effect, and (i) with respect to Confidential Information that constitutes a trade secret under applicable law, for so long as such trade secret status has not been lost; and (ii) with respect to Confidential Information that does not constitute a trade secret, for 5 years after termination or expiration of these Terms, and, (iii) with respect to Personal Information held by Qount, forever.
Right to Use Name. You hereby grant Qount the right to use your name and your brands for the purposes of identifying you as a client of Qount.
11. Installation.
Qount will perform import, setup and installation for You in accordance with Your order/proposal. Any schedule provided by Qount is contingent upon You performing your responsibilities and being responsive to Qount in its reasonable requests, including providing all data required by Qount to setup the Services. Your failure to achieve the foregoing contingencies may require adjustment to the schedule and/or payment of additional fees.
12. Modification of the Services.
Qount reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Services, with or without notice, except that Qount shall provide you with 30-days’ notice of any modification that materially reduces the functionality of the Services. Continued use of the Services following any modification constitutes Subscriber’s acceptance of the modification.
Such notice shall be provided to you in advance through by way of notification within the Services, email or other notification method deemed appropriate by Qount. Further, Qount shall endeavor to confine planned operational suspensions with a best effort to minimize disruption but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, Qount will use the same notification methods listed in this section to provide updates as to the nature and duration of any temporary suspension.
Qount may immediately suspend or restrict access to the Service, in whole or in part, with or without notice to you if: (a) Qount reasonably believes that you have violated any applicable law which may have a potentially adverse effect on Qount or its other customers; (b) Qount believes that providing access to the Website or advertising or offering its Services may violate any applicable law or regulation; (c) Qount reasonably believes that it is necessary to protect the servers, systems, infrastructure, data, or information of Qount or its respective third-party providers or other customers or users, from a denial of service attack, security breach, introduction of a virus or other malware, ransomware attack, or similar event; (d) requested or ordered by a law enforcement agency, government agency, or similar authority; or, (e) you fail to cooperate with Qount to investigate suspected violations of these Terms. Upon removal, cessation or mitigation of the underlying cause for any of the above that occurs, Qount will resume providing access to the affected Service unless your account has been terminated.
Support Level Policy. During the Term, Qount shall use commercially reasonable efforts to (a) make the Services available to you and your Users and (b) provide maintenance and support in accordance with the Support Level Policy set forth in Exhibit A attached hereto and incorporated herein.
Force Majeure. A “Force Majeure Event” means a cause or event beyond the reasonable control of the party claiming delay of performance, including, but not limited to, (i) labor disputes, strikes, or lockouts (but excluding nonunion labor shortage or disputes), or labor unavailability or workplace closure or restrictions or travel restrictions as required or recommended by government or agency (or implemented as company-wide policy by the party suffering the delay in performance) due to pandemic, epidemic, or other widespread health emergency (e.g., viruses or other diseases, such as, but not limited to, COVID-19, SARS, etc.); (ii) riots, war, acts of terrorism, or other civil disturbance; (iii) fire, flood, earthquake, tornado, hurricane, snow, ice, lightning, or other natural disasters, elements of nature or acts of God, (iv) outages, cable cuts, power crisis shortages, infrastructure outages or failures, internet failures, interruption or failure of telecommunications carriers or digital transmission links, network congestion, computer equipment failures, telecommunication equipment or other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, all of the foregoing in this Subsection (v) being of or due to third party providers or utility service providers; (vi) acts of computer, system, or network sabotage or file lockup (e.g., ransomware attack), DDOS or other network attacks, intrusion, or other failures not arising out of a breach of Qount’s data security obligations set forth in these Terms; (vii) any law, regulation, order, direction, action or request of the United States, state or local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of such instrumentality, or of any civil or military authority, or national emergencies, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown; (viii) change in law or regulation making performance impracticable without having material impact on such party’s ability to perform under these Terms without material increase in cost, resources, or time; or, (ix) national or regional shortage of adequate power or telecommunications or transportation.
Any delay in performance (other than for the payment of amounts due) caused by a Force Majeure Event is not a breach of the Agreement. Upon the occurrence of a Force Majeure Event, the affected party (i.e., the party whose performance is delayed) will promptly notify the other party of the Force Majeure Event. The affected party will (a) exercise commercially reasonable efforts to mitigate damages to the other party and to overcome the Force Majeure Event, and (b) continue to perform its obligations under these Terms to the extent it is reasonably able without incurring additional expense. If the Force Majeure Event renders the Service completely unavailable for more than 30 days, You may terminate the Agreement upon written notice to Qount (in which case you will receive a refund of prepaid fees starting from the beginning of the period of unavailability due to such conditions).
13. Indemnification.
You agree to indemnify, defend, and hold Qount and its officers, directors, employees, agents, licensors, and service providers harmless from and against any third party claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys' fees) arising out of or resulting from (a) your and your Users use of the Services, or any violation of these Terms or applicable law; (b) Qount's making available information to any person with your authorization; and (c) Qount's refusal to provide any third party access to your information in accordance with these Terms, or providing access to your information as required or requested by law enforcement or governmental agency. Qount reserves the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by you, and in such event, you agree to cooperate with us in defending such action.
Qount agrees to indemnify, defend, and hold you providers harmless from and against any third party claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys' fees) arising out of or resulting from any violation of these Terms or applicable law by Qount. You reserve the right, at your own expense, to assume the exclusive defense and control of any action subject to indemnification by Qount, and in such event, Qount agrees to cooperate with you in defending such action.
14. Protection of Data.
The Services do not replace the need for you to maintain regular backups of your Data (including User Content) or redundant data archives. Qount has internal policies and procedures to prevent loss of data, including a daily system back-up regime, but does not make any guarantees that there will be no loss, alteration, destruction, damage, or corruption of Data. Qount has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of any Data.
If you enable third-party applications for use in conjunction with the Services, you acknowledge that Qount is not responsible for any disclosure, loss, alteration, destruction, damage, corruption, or deletion of your data resulting from any such access by third-party application providers.
15. No Tax or Legal Advice.
Qount is not your accountant or tax preparer or attorney and use of the Services does not constitute the receipt of accounting or legal advice. If you have any accounting or legal questions, please contact an accountant or attorney, respectively. It is your sole responsibility to determine that the Services meets the needs of your business and is suitable for the purposes for which it is used; and you remain solely responsible for complying with all applicable accounting, tax, and other laws. It is your responsibility to check the applicable laws related to data storage, access and record-keeping to make sure they meet the legal, statutory and business requirements for your needs.
16. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL QOUNT OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, ENHANCED, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THESE TERMS OR YOUR USE OF OR INABILITY TO USE THE SERVICES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IF, NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, QOUNT IS FOUND LIABLE FOR ANY LOSS OR DAMAGE UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, IN NO EVENT WILL QOUNT'S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE TOTAL AMOUNT OF FEES PAID IBY YOU TO QOUNT IN THE 6-MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO ANY CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
If you are not satisfied with the Services, your sole and exclusive remedy is to cancel your Subscription and cease all use of the Services. Some jurisdictions do not allow the exclusion or limitation of certain consequential damages, so some of the exclusions and/or limitations in this Section may not apply to you.
17. Termination.
Qount may immediately, in its sole discretion and without notice, terminate your Subscription or suspend the Services if you fail to comply with these Terms or if you no longer agree to receive electronic communications. Upon termination, you must immediately stop using the Services and any outstanding payments will become due. Any termination of these Terms shall not affect Qount's rights to any payments due to it.
18. Dispute Resolution.
Texas state law governs these Terms without regard to its conflicts of laws provisions. Any legal suit, action, or proceeding arising out of or related to these Terms or the Services shall be instituted exclusively in the state courts of Collin County, Texas or the United States District Court for the Texas Eastern District. You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Any dispute or claim relating in any way to the Services or these Terms will be resolved by mandatory binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply Texas law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
The parties will attempt in good faith to resolve any dispute. Each party will designate an officer or senior level management executive with decision making authority (collectively, an “Executive”) with the responsibility and the authority to resolve the dispute. These Executives will meet or hold a telephone conference call within 30 days after the request to identify the scope of the dispute and the information needed to discuss and attempt to resolve such dispute. These Executives will then gather relevant information regarding the dispute and will meet or hold a telephone conference call promptly to discuss the issues and to negotiate in good faith to resolve that issue. In the event the parties are unable to resolve the dispute within 60 days after the specific meeting of the designated Executives as specified above (or such longer time as the parties agree), then the dispute shall be resolved by mandatory arbitration, which may be submitted by either party. Such arbitration will be conducted at a location (or virtually) to be mutually agreed to by the parties, or in the absence of such agreement, in Plano, Texas in accordance with the commercial rules (“Rules”) then in effect of the American Arbitration Association by one arbitrator appointed in accordance with such rules and who has at least 15 years’ experience in litigating commercial software agreements. The award rendered by the arbitrator will be final and binding, and judgment may be entered upon it in any court having jurisdiction thereof. In the event the arbitrator determines that either party fails to resolve any dispute in good faith, the arbitrator may award (in any amount deemed appropriate by the arbitrator) the prevailing party its costs and expenses of arbitration, including filing fees and attorneys, accountants, and experts’ fees. All aspects of the arbitration shall be treated as confidential, as provided in the Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Each party shall bear its own costs in the arbitration; however, the parties shall share the fees and expenses of the arbitrator equally.
The arbitrator(s) will have no authority to award attorneys’ fees, punitive damages, or any other monetary relief not measured by the prevailing party’s actual damages. The arbitrator(s) will not make any ruling, finding, or award that does not otherwise conform to the terms and conditions of these Terms. The arbitrator may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition.
Notwithstanding the foregoing in this Section 18, either party is free to seek equitable relief in a court having jurisdiction in the event of a breach or threatened breach of a party’s obligations with respect to Confidential Information or intellectual property rights.
WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THESE TERMS AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND QOUNT ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS.
You agree that you have expressly and knowingly waived these rights. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in Collin County, Texas. The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. This Section 18 shall survive expiration, termination or rescission of these Terms.
Any cause of action or claim you may have to arise out of or relating to these Terms or the Services must be commenced within one year after the cause of action or claim accrues, otherwise, such cause of action or claim is permanently barred.
19. Location.
You acknowledge that the Services, including the mobile application, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export any part of the Services, in violation of these laws and regulations, directly or indirectly.
Qount is based in the State of Texas in the United States. We make no claims that the Services are accessible or appropriate outside of the United States. Access to and use of the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
20. Miscellaneous.
These Terms, together with the Privacy Policy, constitute the sole and entire agreement between you and Qount with respect to the subject matter hereof, and supersede and extinguish all prior agreements, representations (whether oral or written), and understandings regarding such subject matter.
Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If we waive any breach of these Terms, such waiver will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Qount will not be liable for any delay or failure in the performance of its obligations under these Terms if the delay or failure is due to any cause outside of our reasonable control.
You may not assign or transfer any rights to any third party without Qount's prior written consent. Any attempted assignment or transfer in violation hereof shall be of no power or effect.
If any part or provision of these Terms is held by a court of competent jurisdiction to be invalid, unenforceable, or in conflict with the law, that part or provision shall be replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision, and the remainder of these Terms will continue in full force and effect.
Any notice given under these Terms by either party to the other must be in writing and sent by email and will be deemed to have been given upon transmission. Notices to Qount must be sent to support@qount.io or to any other email address provided to you by Qount. Notices to you will be sent to the email address associated with your account. For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
These Terms benefit solely the parties hereto and their respective permitted successors and permitted assigns and nothing in these terms, express or implied, confers on any third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
If you have any questions about our Service or these Terms, please email us at support@qount.io or write to us at QountHQ Inc, 7924 Preston Rd. Ste. 350, Plano, TX 75024.
EXHIBIT A
SUPPORT LEVEL POLICY
This Support Level Policy (“SLP”) sets forth Qount’s performance objectives for the availability of its hosted software platform (the “Qount Platform”). While Qount will not modify this SLP arbitrarily, Qount may do so from time to time (e.g., shifting maintenance hours, changing the support email, etc.), provided that no modification will materially reduce Qount’s obligations. Should Qount make a change to this SLP, Qount will notify you. The notification will identify the effective date of any changes.
1. Availability. Qount will use commercially reasonable efforts to maintain availability of the Qount Platform for your use 24x7, except in the event of any of the following, during which the Qount Platform may be partially or totally unavailable:
A. “Scheduled Maintenance”: Scheduled maintenance, which includes updates and other routine maintenance, will be conducted between 9:00 p.m. and 2:00 a.m. EST weekdays, weekends and/or holidays. However, maintenance may also occur at any other time as is necessary to provide top tier service to Qount’s customers. Qount may change planned maintenance windows at its sole discretion and will notify you of any such changes that affect previously notified plans, provided such maintenance is done during low-volume times. Qount will use commercially reasonable efforts to provide you with at least 24 hours’ prior notice if Scheduled Maintenance downtime will occur at such other time.
Qount reserves the right to temporarily suspend access to the Services for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two business days’ notice prior to any such suspension.
B. “Unscheduled Maintenance”: Maintenance not previously planned which is needed to resolve issues that are critical for customers and/or performance of the Qount Platform. Qount will notify customers, when possible, via https://status.qount.io prior to the unscheduled maintenance. When and where practicable, Qount will try to conduct unscheduled maintenance between 9:00 p.m. and 2:00 a.m. EST.
C. Force Majeure Events (as defined in the Terms).
D. Unauthorized use or misuse of the Qount Platform by you or your Users or anyone using any of your authorized User’s login credentials.
2. “Availability Goal”: Qount will use commercially reasonable efforts to make the Qount Platform available 99.5% of the time, measured on an average monthly basis, exclusive of the following:
A. The events set forth in Section 1.A through 1.D. of this SLP;
B. Any outage lasting less than 5 minutes;
C. Any outage Qount determines to be a result of your or your Users’ breach of the Terms or other acts or omissions of you;
D. Force Majeure Events, provided that Qount timely implements its disaster recovery plan; and
E. Any outage determined to be a result of a failure of outside services or equipment not within the control of Qount, including your hardware and software.
3. Technical Support. Qount provides technical support via phone, email and live chat from 8:00 a.m. to 8:00 p.m. EST, Monday through Friday. Additionally, technical support is provided from 1:00 p.m. to 5:00 p.m. EST on the two Saturday’s preceding the following dates: March 15, April 15, September 15 and October 15.
4. Response Time. Qount endeavors to respond to support requests within 12 hours.