Terms of Service

Last Updated: 2009-01-31

The following are the terms and conditions for use of the Qualvu, Inc. (“Qualvu”) Internet-based applications and services (“Services”). Please read these Terms of Service (“Terms”) carefully before accessing the Qualvu website (“Site”) or using the Services. By visiting the Qualvu Site or using or licensing the Qualvu Services, you are stating that you acknowledge and agree to be bound by all of these Terms. The Services are offered to you conditioned on your acceptance without modification of the terms, conditions and notices contained herein. IF YOU DO NOT AGREE TO THESE TERMS OR THE QUALVU PRIVACY POLICY, DO NOT ACCESS THE SITE OR THE SERVICES. The Qualvu Site and Services provide access to online users, panels and communities for providing user feedback in market research and other purposes. A person or entity may use the Services by simply visiting the Site and registering as a user and making use of the online tools provided by the Services (in either instance, a “User”). Qualvu reserves the right to change or modify any of these Terms, its privacy policy, the Services or any policy relating to the Services, at any time, by posting the new agreement or policies, as applicable, to the Qualvu website located at http://www.qualvu.com (or such other URL as Qualvu may provide). Such modifications shall become effective immediately upon the posting thereof. You are responsible for regularly reviewing the website to keep yourself apprised of any changes. Your continued use of the Site or Services will be deemed to be acceptance of any changes to these Terms or the Services.

1. ACCOUNT

To register for the Services and create an account, you must complete the registration process by providing Qualvu with complete and accurate information as prompted by the registration form, including your e-mail address and a user created password. You shall protect your password and are solely responsible for any and all use that occurs under your account. You agree to notify Qualvu immediately of any unauthorized use of your account or any other breach of security.

2. CONTENT

2.1 Qualvu takes no responsibility and assumes no liability for any message, profile, opinion, posting, data, information, file, text, link, music, sound, image, video, photo, graphic, participant information including email and mailing addresses, telephone numbers, code, work of authorship or other material posted, stored, or uploaded or downloaded by you or any third party (“Content”), or for any loss or damage to Content. As a provider of interactive services, Qualvu is not liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter nor will Qualvu be liable for any statements, representations or Content provided by its Users in any public forum, personal home page or other interactive area. Although Qualvu has no obligation to screen, edit or monitor any of the Content posted to or distributed through the Site or Services, Qualvu reserves the right, and has absolute discretion, to remove, screen or edit without notice any Content posted or stored on the Site or through the Services at any time and for any reason. 2.2 By soliciting, posting or distributing Content to or through the Site or Services, you (a) grant Qualvu and its affiliates a non-exclusive, royalty-free, perpetual, transferable, irrevocable and fully sub-licensable right to use, reproduce, modify, adapt, translate, distribute, publish, delete, edit, create derivative works of and display and perform such Content; (b) grant Qualvu, its affiliates and sub-licensees the right to reject or refuse to post Content; and (c) represent and warrant that (i) you own and control all of the rights to the Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute such Content to or through the Site or Services; (ii) such Content is accurate and not misleading; and (iii) use and posting or other transmission of such Content does not violate these Terms and will not violate any rights of or cause injury to any person or entity. You further grant Qualvu the right to pursue at law any person or entity that violates your or Qualvu’s rights in the Content by a breach of these Terms. 2.3 Content submitted by any User will be considered non-confidential and Qualvu may freely use such Content without consent or notice. Qualvu shall have no obligation to offer or provide you (a) any payment or other consideration for Content that you submit or (b) the opportunity to retrieve, view, review, edit, delete or otherwise modify Content once it has been submitted to Qualvu. Qualvu shall have no duty to attribute authorship of Content to you. You specifically agree that Qualvu shall not be responsible for unauthorized access to or alteration of your Content. 2.4 If it is determined that you retain moral rights (including rights of attribution or integrity) in the Content, you hereby declare that (a) you do not require that any personally identifying information be used in connection with the Content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the Content by Qualvu or its licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the Content; and (d) you forever release Qualvu, and its licensees, successors and assigns, from any claims that you could otherwise assert against Qualvu by virtue of any such moral rights.

3. PROPRIETARY RIGHTS

3.1 Except for the limited license granted below, Qualvu expressly reserves all right, title and interest in and to the Site, the Services, the Qualvu-provided technology (together with any fixes, updates and upgrades provided to you) and/or Qualvu-related software, code, script or API and all processing, algorithms and other software and technology used by Qualvu in the provision of the Services (collectively, the “Qualvu Technology”), including, without limitation, any derivatives, improvements, enhancements or extensions of the Qualvu Technology conceived, reduced to practice or otherwise developed on or on behalf of Qualvu, all of which are valuable assets of Qualvu, and any copyright, patent, trademark, other intellectual property right or federal or state right, pertaining thereto. Unless explicitly stated herein, nothing in these Terms may be construed as conferring any license to intellectual property rights, whether by estoppels, implication or otherwise. 3.2 Qualvu and all other product or service names or slogans displayed on the Site, and/or within Qualvu technology are registered and/or common law trademarks of Qualvu and/or its suppliers or licensors, and except as provided herein, may not be copied, imitated or used, in whole or in part, without the prior written permission of Qualvu or the applicable trademark holder. In addition, the look and feel of the Site, any other Qualvu technologies the service marks, trademarks and/or trade dress of Qualvu and, accept as provided herein, may not be copied, imitated or used, in whole or in part, without the prior written permission of Qualvu. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Qualvu.

4. LICENSES

4.1 Subject to these Terms, Qualvu hereby grants to you a limited, revocable, non-exclusive, non-transferable license (‘License’) to access and use the Site and Services and information available from the Site and Services solely in accordance with these terms and conditions and the applicable policies of Qualvu made available on the Qualvu website.

5. RESTRICTIONS ON USE

5.1 You shall not: (a) use, or allow the use of, the Site, the Services or any Qualvu Technology, except pursuant to the limited rights expressly granted in these Terms; (b) use the Site, the Services or the Qualvu Technology other than for its intended purpose or in any manner that is inconsistent with user documentation, if any, made available to you by Qualvu; (c) attempt to decompile, reverse engineer, hack into or compromise any aspect of the Site, the Services or Qualvu Technology, or attempt to access personal data of any other registered Users; (d) use any data mining, robots or similar data gathering or extraction methods to collect information or data from the Site or Services; (e) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on the Site or any materials delivered to you by Qualvu; (f) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Site or Services; (g) reproduce, distribute, display, modify or otherwise make derivative uses of the Site, the Services, the Qualvu Technology or the Content, or any portion thereof (except for that Content which is owned by you, that is in the public domain or for which you have been given written permission), except as provided herein; or (h) engage in any prohibited conduct, as detailed below. 5.2 The Qualvu Site and Services are for the personal use of Users only and may not be used in connection with any commercial endeavors except for those that are specifically approved in writing by Qualvu. You will not engage in advertising to, or solicitation of, any other User to buy or sell any products or services through the Site or Services. Commercial advertisements, affiliate links and other forms of solicitation may be removed from your Content without notice and may result in suspension or termination of your Qualvu account. 5.3 Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. You will not use the Site or Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding the transmission of technical data exported from the United States or the country in which you reside, any laws affecting the transmission or posting of content or affecting the privacy of persons, or any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity. 5.4 Except as expressly permitted herein, any use of any portion of the Site, the Services, or Content without the prior written permission of Qualvu is strictly prohibited and will terminate the License. Any such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes.

6. PROHIBITED CONDUCT

You agree that you are responsible for your own conduct and Content while using the Site and Services and for any consequences thereof. You agree to use the Site and Services only for purposes that are legal, proper and in accordance with these Terms and any applicable policies or guidelines. By way of example, and not as a limitation, you agree not to post, email, or otherwise make available Content: a. that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or is harmful to minors in any way; b. that is pornographic or depicts a human being engaged in actual sexual conduct; c. that harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; d. that impersonates any person or entity, including, but not limited to, a Qualvu employee, or falsely states or otherwise misrepresents your affiliation with a person or entity (this provision does not apply to messages that are lawful non-deceptive parodies of public figures); e. that includes personal or identifying information, beyond a first name, about another person without that person’s explicit consent; f. that is false, deceptive, misleading, deceitful, mis-informative, or constitutes “bait and switch”; g. that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or Content that you do not have a right to make available under any law or under contractual or fiduciary relationships; h. that constitutes or contains “affiliate marketing,” “link referral code,” “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or unsolicited commercial advertisement; i. that constitutes or contains any form of advertising or solicitation if: posted in areas of the Qualvu Site which are not designated for such purposes; or emailed to Qualvu Users who have not indicated in writing that it is all right to contact them about other services, products or commercial interests; j. that advertises any illegal service or the sale of any items the sale of which is prohibited or restricted by any applicable law, including without limitation items the sale of which is prohibited or regulated by Massachusetts law; k. that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; l. that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site or Services, or that otherwise negatively affects other Users’ ability to use the Site or Services; or m. that employs misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site or Services.

7. Additionally, you agree not to:

n. contact anyone who has asked not to be contacted; o. “stalk” or otherwise harass anyone, or utilize project email reminder features to harass participants, p. attempt to gain unauthorized access to Qualvu’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Services or the Qualvu website; or q. use any form of automated device or computer program that enables the submission of postings on or through the Qualvu Site or Services without each posting being manually entered by the author thereof (an “automated posting device”), including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals. The above list is only representative of the conduct not permitted under these Terms and is not exhaustive. Qualvu does not screen the behavior of Users and is not liable for their actions or violations of these Terms. If you suspect a User is in violation of these Terms, please contact Qualvu . Any conduct deemed inappropriate by Qualvu may result in suspension or termination of your Qualvu account.

8. Third Parties

The Site may contain links to third party websites (“Third Party Sites”) and third party content (“Third Party Content”). You use links to Third Party Sites, and any Third Party Content therein, at your own risk. Qualvu does not monitor or have any control over, and makes no claim or representation regarding, Third Party Content or Third Party Sites. Qualvu provides these links only as a convenience, and a link to a Third Party Site or Third Party Content does not imply Qualvu’s endorsement, adoption or sponsorship of, or affiliation with, such Third Party Site or Third Party Content. Qualvu accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third Party Content, Third Party Sites or websites linking to the Site. When you leave the Site, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Site, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. 8.1 Your interactions with other Users of the Site or Services or with advertisers, including payment and delivery of goods or services, or other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User or the advertiser. You agree that Qualvu will not be responsible for any loss or damage incurred as the result of any such dealings or with respect to any third party’s use or disclosure of personally identifiable information supplied to such third party by you. If there is a dispute between you and any third party (including another User), Qualvu has the right, but not the obligation, to participate in or monitor such dispute.

9. FEES

Qualvu reserves the right to introduce a fee for use of the Services. As a condition of your continued use of and access to the Services following notice thereof, you agree to pay Qualvu pursuant to the then-current fee schedule, and Qualvu reserves the right to deactivate your access to the Services for failure to pay any such applicable fee.

10. FEEDBACK

You recognize and agree that Qualvu may implement mechanisms allowing us and other Users to track your contributions to the Services and rate your performance as a User. Qualvu reserves the right to collect feedback regarding your performance and to post such feedback, including but not limited to, bandwidth usage, on the Site. You may not take any actions that may undermine the integrity of the feedback system.

11. PRIVACY

11.1 Access to the Qualvu Site and Services may store a cookie on your computer. None of your personal information is stored within the cookie. In connection with the provision of the Services, Qualvu may aggregate data derived from your use of the Services to compile aggregate statistics, metrics and general trend data about the Services for marketing and promotional purposes. 11.2 You agree to not use the Site or Services to track or collect personally identifiable information of other Users, nor will you associate any data gathered with any personally identifying information from any source as part of your use of the Site or Services. 11.3 Qualvu is committed to protecting your privacy and the information that Qualvu gathers. Qualvu’s complete Privacy Policy, which is incorporated into this Agreement by reference, is available at http://www.qualvu.com.

12. NOTIFICATION OF CLAIMS OF INFRINGEMENT

If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify notify Qualvu’s agent for notice of claims of copyright or other intellectual property infringement (“Agent”). Include “Attn: Copyright Agent” in the subject line. Please provide our Agent with the following notice (“Notice”): a. A description of the copyrighted work that you claim has been infringed; b. A description of the material on the Site that you claim is infringing, with enough detail so that we may locate it; c. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; d. A statement by you declaring under penalty of perjury that (1) the above information in your Notice is accurate, and (2) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner; e. Your address, telephone number, and email address; and f. The physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest. Qualvu will remove the infringing posting(s), subject to the procedures outlined in the Digital Millennium Copyright Act (“DMCA”).

13. INDEMNIFICATION

You agree to indemnify, hold harmless and defend Qualvu, including its officers, directors, employees, agents or affiliates, at your expense, against any and all third party claims, actions, proceedings, and suits brought against Qualvu or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees) incurred by Qualvu or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) your breach of any term or condition of these Terms, or (b) your use of the Site, the Services, or Technology. In such a case, Qualvu will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. Qualvu reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

14. RELEASE

You hereby release Qualvu, its officers, directors, employees, agents and affiliates from any and all claims, demands, losses, damages, rights, and actions of any kind including, without limitation, personal injuries, death and property damage, that are either directly or indirectly related to or arise from (a) any interactions with other Users, (b) any incorrect or inaccurate Content (including any information in profiles) posted on or through the Site or Services, whether caused by Users or by any of the equipment or programming associated with or utilized in the Site or Services, or (c) conduct of any User of the Site or Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. ”

15. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS

THE SITE, THE SERVICES, AND ALL QUALVU TECHNOLOGY ARE PROVIDED ‘AS IS’ AND AS AVAILABLE. THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY QUALVU EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, THE SERVICES, THE TOOLBAR, THE TABLET AND ALL QUALVU TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. THE INFORMATION AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE OR SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. QUALVU DOES NOT WARRANT THAT (A) THE SITE, THE SERVICES, OR OTHER QUALVU TECHNOLOGY WILL MEET YOUR NEEDS, (B) THE SITE, THE SERVICES, OR OTHER QUALVU TECHNOLOGY WILL BE ERROR-FREE OR ACCESSIBLE AT ALL TIMES, (C) DEFECTS WILL BE CORRECTED, (D) THE SITE, THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR (E) THE USE OR THE RESULTS OF THE USE OF THE SITE OR SERVICES OR THE CONTENT MADE AVAILABLE AS PART OF THE SITE OR SERVICES WILL BE CORRECT, ACCURATE, TIMELY OR OTHERWISE RELIABLE. The foregoing exclusions and disclaimers are an essential part of these terms and formed the basis for determining the price (if any) charged for the Services. Some states do not allow exclusion of an implied warranty, so this disclaimer may not apply to you.

16. LIMITATIONS OF LIABILITY

16.1 QUALVU WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA, ARISING FROM YOUR USE OF THE SITE OR SERVICES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF QUALVU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 16.2 Qualvu’s cumulative liability to you or any other party for any loss or damage resulting from any claims, demands, or actions arising out of or relating to these Terms shall not exceed ten dollars (US$10). Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you.

17. TERMINATION; MODIFICATION OF LICENSE AND SITE OFFERINGS

17.1 Notwithstanding any provision of these Terms, Qualvu reserves the right, in its sole discretion, without any notice or liability to you, to (a) terminate your license to use the Site, the Services and Content, or any portion thereof; (b) block or prevent your future access to and use of all or any portion of the Site, the Services or Content; (c) change, suspend or discontinue any aspect of the Site, the Services or Content; and (d) impose limits on the Site, the Services and Content. Either party may terminate the License at any time and for any reason. In addition, the License will terminate immediately, without notice, if you fail to comply with these Terms. 17.2 Upon any termination of the License, you will discontinue use of the Site and Services. Upon termination of the License, you will no longer have access to the Site or Services or any of the Content contained therein. 17.3 Section 2 will survive termination of the License.

18. APPLICABLE LAW AND VENUE; MISCELLANEOUS

18.1 These Terms represent the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. 18.2 These Terms shall be governed by and construed under the laws of the State of Colorado without reference to its conflict of law principles. 18.3 In the event of any conflicts between foreign law, rules and regulations and Colorado law, Colorado law, rules and regulations shall prevail and govern. 18.4 Each party agrees to submit to the exclusive and personal jurisdiction of the state and federal courts located in Denver, Colorado. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to these Terms. 18.5 The Qualvu Technology is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. 18.6 Any notices to Qualvu, Inc must be sent via email addressed to the Qualvu Information Desk, and are deemed given upon receipt. 18.7 If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms shall continue in full force and effect. 18.8 A waiver of any default is not a waiver of any subsequent default. 18.9 You represent and warrant that you are eighteen (18) years of age and that you have the right and ability to enter into these Terms. If you are under eighteen (18) years of age, your legal guardian has read and agrees to these Terms. 18.10 These Terms shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.