Terms & Conditions

Last updated: 14th of July 2009

READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN SYMETRIQ AND YOU, INCLUDING ANY SymetriQ CUSTOMER OR USER, (collectively referred to herein as "Customer").

These Terms of Service form the agreement (this/the "Agreement") between SymetriQ Ltd, a Scottish limited liability company, ("SymetriQ") and Customer. This Agreement governs the provision by SymetriQ of cloud computing services and access to the cloud infrastructure (the "Service") for the purpose of testing and evaluation. The agreement is effective as of the moment Customer accepts the Agreement on the website through which the Service is provided, as of the moment the two parties sign a paper version, or as of the moment Customer uses the Service (whichever comes first).

1. The Service.

1.1. SymetriQ will provide the Service pursuant to this Agreement. Customer agrees that the Service is for testing and evaluation purposes only and not for use in production environments.

1.2. So long as Customer remains in compliance with the terms of this Agreement, SymetriQ grants Customer a license to reproduce and use, during the term of this Agreement, all programs and tools downloaded by Customer under this Agreement for the use of the Service. The license in the preceding sentence is contingent upon the following: Customer will not reproduce or use the application for any purpose other than to receive the Service. Customer may not sublicense the rights granted in this section 1.2. SymetriQ retains all title and interest in and to the QHelper application, and Customer receives no rights other than those specifically granted in this section 1.2.

1.3. Title and intellectual property rights to the Service and all components thereof are owned by SymetriQ and its licensors and suppliers. All Internet protocol addresses provided by SymetriQ are licensed to Customer temporarily and remain SymetriQ or its suppliers' sole and exclusive property. This Agreement does not grant Customer a license to any software used to provide the Service or associated with the Service (collectively, "Software") other than as set out under section 1.2, or to any other software, by implication, by estoppel, or otherwise. Without limiting the generality of the foregoing, Customer will not reproduce, reverse engineer, decompile, or disassemble the Software. The logos, service marks, and trademarks (collectively, "Trademarks") displayed on SymetriQ's website and through the Service, whether or not registered, belong to SymetriQ, its licensors or suppliers. Neither this Agreement nor any SymetriQ website grants a license to any Trademark, by implication, by estoppel, or otherwise. Nothing in this Agreement transfers to SymetriQ any copyright in, trademark on, or other ownership interest in any data or content of Customer.

2. Term and Termination.

2.1. This Agreement will continue until terminated by either party pursuant to the procedures set forth in this Section 2.

2.2. Either party may terminate this Agreement by written notice (including e-mail), effective on the day after such notice. Solely Customer is responsible for notifying any sub-accounts that have been created by Customer.

2.3. In the event of any material breach of this Agreement, including without limitation any breach of the provisions of the AUP, SymetriQ may terminate the Service, any portion thereof, or this Agreement, without advance notice.

3. Acceptable Use.

3.1. Customer will not allow the Service or SymetriQ equipment to be used for activities prohibited by this Agreement. Third party violations of this Agreement using Customer's Service, including any IP addresses, points of access to the Internet, systems, software, or equipment assigned to Customer, will be considered violations by Customer. Customer shall comply at its own expense with all relevant and applicable laws related to the use of the Service as permitted in this Agreement.

3.2. Customer understands that all data (eg text, files, images, photos, video, sounds, or other materials) ("Content") Customer makes available through the use of the Service, are the sole responsibility of the person from whom such Content originates. Customer is entirely responsible for all Content that Customer makes available via the Service. Customer understands that SymetriQ does not control, and is not responsible for, Content made available through the Service.

3.3. Customer acknowledges that SymetriQ does not pre-screen, monitor or approve Content, although SymetriQ reserves the right to do so in its sole discretion. SymetriQ shall at any time and without prior notice have the right (but not the obligation) in its sole discretion to refuse, delete or remove any Content that is available via the Service, for violating the letter or spirit of this Agreement or for any other reason. Customer agrees not to use the Service for any unlawful or inappropriate purpose, such as to transmit any Content that contains pornography, infringes upon a copyright, or violates applicable state, federal, or international laws, regulations or other government requirements, without this list of examples being exhaustive.

3.4. SymetriQ is not responsible or liable for any financial or personal loss incurred by Customer using the Service for any reason including but not limited to server malfunction, server crashes, software related problems or accidental or willful deletion of accounts or Content.

3.5. SymetriQ makes no warranties or representations whatsoever with regard to any product provided or offered by any user, and Customer acknowledges that any reliance on representations and warranties provided by any user shall be at Customer's own risk.

3.6. Customer must comply with and not attempt to disable or circumvent any security device or procedure associated with the Service. Customer assumes full responsibility for maintaining the confidentiality of the login and password used in conjunction with the Service. Customer shall not allow anyone else to use its account without prior, written approval of SymetriQ. Customer agrees that SymetriQ will not be liable for any loss Customer may incur as a result of someone else using Customer's password, either with or without Customer's knowledge.

3.7. Customer will do nothing to impair the normal operation of the Service, and will do nothing to restrict or inhibit any other person from using and enjoying the Service. Customer will do nothing that will damage or disable the Service. Customer will not attempt to access unauthorized access to information or content belonging to any other party using the Service.

3.8. Customer will not use the Service to send chain letters, unsolicited commercial email (also known as spam), junk email, or other unsolicited messages; transfer any material that is protected by any patent, trademark, trade secret, copyright or other proprietary rights of any party unless Customer has sole ownership over that material or has received all necessary consents to distribute that material; transmit files that contain viruses, Trojan horses, worms, corrupted files, or any other software, programs, or code that may damage the operation of another's computer or the data or property of another (a 'Virus'); transmit any material that is harmful to minors, promotes hate propaganda or promotes, encourages, or provides instructional information about illegal activities.

3.9. When using the Service, Customer's data is stored on SymetriQ's servers as part of the normal operating process of providing the Service. Regardless of any precautions taken, Customer understands that SymetriQ cannot guarantee the privacy of the files made available through the Service. Customer agrees that SymetriQ has no responsibility or liability for the deletion, corruption, or failure to store any data stored or transmitted by the Service. Customer understand that SymetriQ does not back up the files through the Service, and Customer agrees that Customer is responsible for keeping back-up copies of all files uploaded to the Service.

4. Maintenance & Security.

4.1. SymetriQ may interrupt Service to perform maintenance on SymetriQ equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties.

5. Private and Confidential Information.

5.1. SymetriQ is not responsible for use or misuse of data by any third party, including without limitation any Customer, even if SymetriQ hosts such Customer's data.

5.2. Customer will not use Confidential Information (as defined below) for any purpose other than to facilitate the Service. Except as specifically authorized in writing in advance by SymetriQ, Customer will not disclose Confidential Information to any third party, and will prevent any such disclosure of Confidential Information in Customer's possession or control. Without limiting the generality of the foregoing, Customer will take reasonable precautions to protect Confidential Information and will not disclose Confidential Information to any of its employees or contractors who do not need to know. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; provided Customer gives SymetriQ advanced notice reasonably sufficient to allow SymetriQ to seek a protective order or otherwise to contest such required disclosure, and reasonably cooperates in such effort. Customer will promptly notify SymetriQ in writing of any misuse or misappropriation of Confidential Information that comes to Customer's attention and will cooperate with SymetriQ in investigating any such misappropriation and in mitigating any damages caused. Upon termination of this Agreement or upon SymetriQ's written request, Customer will return all Confidential Information to SymetriQ and certify, in writing, the destruction of any copies thereof.

5.3. "Confidential Information" refers to any information SymetriQ provides to Customer in any form and marks "Confidential," and any information SymetriQ discloses orally and identifies as "Confidential" on or before disclosure. However, Confidential Information does not include information that: (A) is in Customer's possession at the time of original disclosure by SymetriQ; (B) is independently developed by Customer without use of or reference to information provided by SymetriQ; or (C) becomes known publicly, before or after disclosure, other than as a result of Customer's improper action or inaction.

5.4. Customer agrees that breach of the provisions of this section 5 might cause SymetriQ irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, SymetriQ will be entitled to preliminary, temporary, and/or permanent injunctive relief against such breach or threatened breach, without the necessity of proving actual damages.

6. Warranties, Disclaimers, & Limitations of Liability.

6.1. Customer acknowledges and agrees that SymetriQ does not by virtue of this Agreement make, and hereby expressly disclaims to the maximum extent permitted by applicable law, any representation or warranty, express or implied, to Customer relating to the Service or otherwise (including without limitation the implied warranties of merchantability and fitness for a particular purpose). SymetriQ does not warrant that the Service will be uninterrupted or error-free. The Service is provided with no warranties regarding security, reliability, protection from attacks, data integrity, or data availability.

6.2. The Service, and any information related thereto, is furnished on an "as is" and "as available" basis, with all faults known or unknown. Customer agrees that SymetriQ shall have no obligation to maintain, correct, update, change, modify or otherwise support the Service that is the subject of this Agreement. SymetriQ makes no guarantee or commitment as to the success of the Service.

6.3. SymetriQ shall not be liable to Customer for any loss; including but not limited to loss of revenue, profits, data or any other direct, indirect, incidental or consequential damages even if advised of the possibility of such damages by reason of any performance or non-performance under this Agreement. Furthermore, SymetriQ shall not be liable for any delays, losses or other damages which may result from furnishing the Service to Customer or cancelling the Service. Customer acknowledges that SymetriQ has the right at any time to change, cancel, delay, or withdraw its efforts and schedules toward the Service even to the extent of eliminating or delaying indefinitely the Service defined under this Agreement, and Customer also agrees that SymetriQ will not be liable to Customer for any loss of revenue, profits, data or any other direct, incidental or consequential damages, even if advised of the possibility of such damages by reason of any such change, cancellation, delay or withdrawal by SymetriQ of its efforts and schedules, including and encompassing any future profit projections from the above mentioned on the part of SymetriQ.

7. Miscellaneous.

7.1. Customer shall not assign this Agreement, in whole or in part, without the express written consent of SymetriQ. Any assignment by Customer without such written consent shall be null and void.

7.2. Upon termination of this Agreement, Customer shall return to SymetriQ or destroy all materials, data, documentation and information relating to the Service, including all copies, regardless of the form or media on which such materials, data, documentation or information is contained. Within two (2) weeks following the date of termination, Customer shall certify to SymetriQ that the terms of this section have been complied with.

7.3. This Agreement shall be construed and enforced in accordance with the laws of Scotland. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

7.4. Any dispute, controversy or claim arising out of or relating to this Agreement and/or the Service, or the breach, termination or invalidity thereof, shall be exclusively settled by the competent courts of Scotland.

7.5. The waiver, express or implied, by either party of any breach of this Agreement by the other party will not waive any subsequent breach by such party of the same or a different kind.

7.6. In the event that any provisions hereof are found invalid or unenforceable pursuant to judicial decree or otherwise, the remainder of this Agreement shall remain valid and enforceable according to its terms.

7.7. This Agreement constitutes the entire understanding and agreement between SymetriQ and Customer with respect to the transactions contemplated herein and supersedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein. This Agreement may not be modified, amended or in any way altered except by an instrument in writing signed by both of the parties hereto.