Agreement of Terms of use between you and Qymatix

Effective April 18th, 2018

 

GENERAL

Terms of use (here also “Agreement”) apply to all users of Qymatix Software Solutions (also referred as “Service/s”, “Tool/s”, “Product/s” or “Qymatix”) owned by Qymatix Solutions GbmH. Qymatix Solutions GbmH is based in Karlsruhe, Germany, and this Agreement is governed by and is to be constructed per the German law. The German Courts will have non-exclusive jurisdiction to deal with any dispute which has arisen or may arise out of or about this Agreement.

The Qymatix services are directed exclusively to businesses in the sense of §14 BGB (Bürgerliches Gesetzbuch of the German Republic): natural or legal persons or legal entities. This agreement governs the use of Qymatix services and Qymatix website. If you register for a demonstration or a free trial, this agreement will also govern that demonstration or free trial.

By using Qymatix services, visiting Qymatix website or clicking on a dedicated box, you agree to the terms of this agreement on your behalf or on behalf of a company or other legal entity you might represent, and you acknowledge to have the authority to bind such entity and its affiliates to this agreement. If you do not agree with these terms of use, you must not accept this agreement and must not use Qymatix services. By agreeing to the terms of this agreement you declare that using Qymatix can be only attributed to a commercial or independent professional activity. Qymatix is not intended to be used by end consumers.

Users, as described in this Agreement, are also companies or legal entities that have entered into a contractual relationship with Qymatix by way of a separate or free of charge contract.

Qymatix employees are also entitled to make agreements, supplemental agreements, individual contracts or assurances which differ from this Terms if these have been confirmed in the order confirmation in writing and confirmed by a person expressly entitled to do so or by his or her position, procuration or general authorisation.

Deviating terms of purchase or business of the user are only valid if Qymatix has acknowledged this separately in writing. In the event of a conflict, they shall be regarded as subordinate to this Agreement.

You shall not access Qymatix if you are a direct competitor, except with Qymatix prior written consent. Additionally, you may not access Qymatix for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

SERVICE

Qymatix is a predictive analytics service and a customer relationship management software service, dedicated to professional use only. Qymatix Solutions GmbH has no liability for any corruption, deletion, destruction, loss or accuracy of any of your data or analytics.

Qymatix reserve for itself the right to modify or terminate this Agreement at any time and without prior notice. If you continue to access or use Qymatix, you are indicating the acceptance of any new terms or conditions. If you do not accept the modified terms of use, you will be refusing using Qymatix services.

To be able to perform our Services and or to set up a monthly data synchronisation, you might need to grant or arrange for us remote access to your sales or customer databases during a period agreed. Failing to do so might result in you being unable to update your sales data in Qymatix. We are happy to support you to configure remote access for us. Setting up remote access might require an extra effort from our side, and sometimes we will need to charge you for this. We will always clarify any additional costs with you in advance.

 

ACCOUNT

To access Qymatix, you will have to register yourself and create an account. You must be 18 years or older to use Qymatix. You must be a human and agree not to use or launch any automated system to access Qymatix unless authorised to so by our prior written consent. You and you alone must use your login. You are not allowed to share your login information not the access rights with any other person neither are you allowed to share your account or access including but not limited to data for authentication such as logins, usernames and emails passwords, tokens or API keys. Similarly, you may never use another’s user account. You can still create separate logins for different persons.

You are responsible for all activity that occurs on your account. Qymatix will not be liable for any loss or damage from your failure to comply with this obligation. One person or legal entity may not maintain more than one account for free trial purposes. You may access and use Qymatix only for lawful purposes. You must notify Qymatix immediately of any breach of security or unauthorised use of your account at info@qymatix.com. You must provide Qymatix with your full legal name, a valid email address, and any other information requested during the signup process.

Qymatix thereby grants you a personal, non-sub licensable, non-transferable and non-exclusive right to use this service. Intentionally failing to identify yourself or proving Qymatix with a false name to gain access to Qymatix is considered a violation of this terms of use and could be prosecuted.

You expressly understand and agree that Qymatix is not liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from your use of our services. You agree that you bear sole responsibility for adequate security, protection, and backup of your data.

Qymatix reserves the right at any time to modify or discontinue, temporarily or permanently, your access to Qymatix without notice.

You shall not attempt to perform reverse engineering, decompile or any other methods to acquire Qymatix source code. You are prohibited from developing and providing a “hosted service” that reimplements or duplicates the Qymatix functionality.

You will not intend to take advantage of possible program errors, but to report them immediately to Qymatix. You will not try to manipulate Qymatix service or its infrastructure intentionally.

 

PAYMENT AND REIMBURSEMENTS

Qymatix products can be tested for free during a trial period, without any commitment of a future purchase. This trial period varies from one type of product to another. If you want to continue using Qymatix after your trial period has expired, you must subscribe to the paying version at the rates and conditions that apply. A second free trial period is possible if Qymatix decided so.

A contractual relationship with the user comes into existence by written or electronic transmission of an order to Qymatix or by a telephonic agreement. Qymatix will charge you payments for any period of use before the start of it. A valid credit card or a money transfer could be required. Direct billing is also possible if decided by Qymatix. There is no account activation fee, but implementation costs may apply. Implementation costs are always agreed with you beforehand.

The minimum running time of a Qymatix contract is 12 months unless stated otherwise in our offer and your order confirmation. The fees for each performance period are always due in full for the entire term, unless explicitly agreed otherwise. Invoices are issued at the beginning of the term and are payable within ten days after receipt by the user.

Orders placed are binding and not transferable to other customers. If clients and users differ (for example, if an agency makes an order on behalf of a customer), both addresses must be named so that a different form of the invoice can be issued.

Taxes will be charged regarding your location for each payment and will appear on each bill. Customers based outside the European Union won’t be charged additional taxes unless future changes in the legislation of your country force Qymatix to do so. Customers inside the European Union but outside Germany will be charged German taxes unless they give us their intra-communitarian VAT number. You agree to provide Qymatix with complete and accurate billing information. You can always downgrade your type of subscription for the following invoicing period.

 

CHANGES TO QYMATIX AND PRICES

Qymatix holds the right without prior notice at any time to modify or discontinue, temporarily or permanently, Qymatix (or any part thereof). Prices and subscription plan fees to the Qymatix Service, are subject to change. Notice can be provided at any time by posting the changes to the Qymatix Site.

Qymatix will not be liable to you or any third party for any modification, price change, suspension or discontinuance of the Qymatix Service.

Shall any change in price be unavoidable, we will do our best to clarify it with you in advance.

 

CONSULTING SERVICES

You may purchase Consulting Services by placing an Order with us.

Unless agreed otherwise, Qymatix Consulting Services include Seminars, Workshops and Training. Qymatix can sell to you these separately or as part of integration, implementation or long-term project.

Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew per your subscription. Consulting Services are non-cancellable, and all fees for Consulting Services are non-refundable.

Unless agreed otherwise, you will reimburse Qymatix reasonable costs for all expenses incurred regarding the Consulting Services. Consulting Services are performed remotely unless you and Qymatix otherwise agree.

If the Consulting Services is not complete at the end of an agreed deadline (usually 30 days after your purchase) due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete.

If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.

 

TERMINATION

You cannot terminate this Agreement before the end of the Subscription Term.

The right of either party to terminate this Agreement for a compelling reason under a claim of extraordinary termination under the German Civil Code remains unaffected.

You are responsible for termination of your account. You can cancel your account at any time by sending an email to Qymatix from the same email you use to register. After the termination of your user account, all your generated content and information can be immediately deleted from Qymatix, unless agreed otherwise. Remember that you can always download your information yourself in a CSV yourself. Once Qymatix terminates your account, you cannot recover your data.

If you terminate your account upon thirty (30) days’ notice before the end of your current paid period, your cancellation will take effect immediately, and you will not be charged again for the next period.

If you don’t terminate your account upon thirty (30) days’ notice, Qymatix may charge you for the next period. Qymatix will send you a timely reminder before the expiration of your paid period. If you do not react to the remainder by confirming your intention of using Qymatix or by sending us a payment, we will understand that you do not want to continue using Qymatix and your account may be suspended at the end of your paid period. Qymatix withholds the right to terminate and delete suspended accounts at any time.

Qymatix reserves the right to refuse its services to anyone for any reason at any time. Qymatix has the right to suspend or terminate any account and to deny the current or future use of the Qymatix Service for any reason at any time.

You may terminate this Agreement for cause, as to any or all Subscription Services upon thirty (30) days’ notice to Qymatix of a material breach if such breach remains uncured at the expiration of such period. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on Qymatix.

 

CONTENT OWNERSHIP

Qymatix has no intellectual property rights or any other property rights over the material you provide to Qymatix. Your profile and data uploaded remain yours exclusively. Neither this Agreement nor the usage of Qymatix grants you any license, interest or right in respect of any intellectual property rights of Qymatix.

Qymatix has the right to remove any content at any time without prior notice. You may not duplicate, copy, or reuse any portion of the HTML/CSS or any visual design elements of Qymatix without the express written permission from Qymatix. You agree not to reproduce, duplicate, copy, sell, resell or exploit in any way any portion of the Qymatix Service, use of the Qymatix Service, or access to the Qymatix Service without the express written permission by Qymatix.

Nothing in this Agreement will prevent you from making any disclosure of any intellectual property rights of Qymatix if required by law or by any competent authority.

The customer’s data required for the transaction processing are stored electronically in compliance with the provisions of the EU General Data Protection Regulation (GDPR) and
the German Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG – German federal data protection act).

The user agrees to the processing of his data according to the currently valid data protection declaration of Qymatix, found at the foot of this page. The user agrees not to store any personal data outside the scope of the tool as a professional and business tool. The user can at any time retrieve the information stored in Qymatix ba accessing the menu “data” as described in our product documentation.

 

SUPPORT

Your use of the Qymatix Service is at your sole risk. The Qymatix service, including Application programming interfaces (API), is provided on an “as-is” and “as-available” basis. We provide technical support to paying account holders first and to test account holders only if available.

Unless agreed otherwise, technical support is only available by filling in a web support formulary here.

There are three classes of errors. Error Class 1: The error (or defect) prevents the use of Qymatix Service or essential parts of it. In the case of such a situation, Qymatix will try to fix it as soon as possible during working times, Monday to Friday from 9 am to 6 pm German Time, except national holidays.

Error Class 2: The error severely hinders the use of Qymatix, that is the use of the service is only possible with considerable effort, or it represents an unacceptable risk for the proper functioning of other of your systems. In the case of this kind of error, Qymatix will try to fix it within 24 hours from the time of the first report. If we cannot solve the issue in a reasonable period, then we will refund to you the pro-rata amount of fees paid applicable to the unremedied error. You cannot deduct this amount from your Subscription unless your claim is undisputed or has been confirmed by a final court judgment.

In the case of other errors (= error class 3: usage is not significantly affected), Qymatix will fix them within a reasonable period and remedy it if internal processes in Qymatix (for example, the next update of the Qymatix software) enable efficient elimination.

You understand that Qymatix uses third party vendors and hosting partners to provide the necessary software, hardware, networking, storage, and related technology required to run Qymatix and is not liable in any way for downtimes or technical issues of third-party, vendors or hosting partners. Unless otherwise agreed with you, Qymatix will host your data in Germany.

If the bandwidth usage significantly exceeds an average bandwidth usage (as determined by Qymatix), Qymatix withholds the right to disable your account until you can reduce your bandwidth consumption.

Storage is included in all Qymatix accounts and should never overreach the capacity needed for the usage of Qymatix products. Shall you account need more than the average data storage (as determined by Qymatix) we will inform you within 30 days of we becoming aware o this situation. If we cannot longer provide you with the storage your account needs, we will do our best to increase your storage without incurring any extra costs. Shall this not be possible, we will inform you of the cost arising from your usage beforehand.

You must not transmit any worms or viruses or any code of a destructive nature through Qymatix service and to Qymatix. You will be held accountable for it shall it happen.

Shall Qymatix fail to exercise or enforce any right or provision of this Terms of Use, it will not constitute in any way a waiver of such right or provision. The Terms of Use constitutes the entire agreement between you and Qymatix Solutions GmbH and govern your use of Qymatix, superseding any prior agreements between you and Qymatix (including, but not limited to, any earlier versions of the Terms of Use).

 

THIRD PARTY SERVICES

Some of our products rely on third-party providers. Shall any of them cancel or refuse their services without prior advice, Qymatix might still be able to continue providing you with some of the selected functionalities. In that case, we will do our best to find a suitable substitute. By no means shall Qymatix be held responsible for breach of contract. We disclaim all liability concerning third-party providers.

If we are not able to replace the third-party service, we will inform you as soon as we can. In that case, we will reimburse you with a proportion of Qymatix we are no longer able to provide at our discretion.

 

LIABILITY & DAMAGES

We professionally provide our services following common industry standards utilising reasonable care and skill.

Qymatix will be liable to you without limit for loss or damage caused by our fraudulent or deliberate action, our gross negligence, injury to life, body or health, or any activity that would give rise to a claim under the German product liability act and/or from a guarantee of characteristics (“Zugesicherte Eigenschaft”).

This does not apply, as far as essential obligations of this terms are not violated by Qymatix. Significant contractual obligations are those whose fulfilment is the only way to ensure the proper execution of the contract and that the contractual partner can regularly trust and trust in compliance with this Terms.

In the case of slight negligence, Qymatix is not liable for damage to the assets as a result of indirect cost, in particular, consequential damage, unpredictable damage or untypical damage or loss of profit.

The claims for which Qymatix will be liable to you without limit by this section are referred to as “full liability claims”.

full liability claims will be limited to the lesser of five thousand euros or the total amounts you have paid for the subscription service in the twelve-month period preceding the event giving rise to a claim.

Except for full liability claims, to the extent permitted by law, in no event shall Qymatix be liable for any indirect, incidental, punitive, or consequential damages, or loss of profits, revenue, data or business opportunities.

Except for full liability claims, the period of limitation for any warranty and liability claims shall be one year.

 

FINAL CLAUSES

The place of jurisdiction for any disputes that arise from or about this agreement is Karlsruhe, Germany. Should individual terms of this Agreement be invalid or lose validity due to factors arising later, the validity of the rest of the agreement shall remain unaffected. Communication with you may take place in the form of emails sent to the email address entered you provided Qymatix during registration. You must ensure that your email address is always up to date and that it is always able to receive emails from Qymatix.

 

LOGO

By registering for the Qymatix service, you grant Qymatix permission to use your company name and logo for marketing and promotion purposes only. You can revoke this consent at any time by sending an email to info@qymatix.com from the email you used to register for the service.

 

________________________________

Updated as of 11th July 2017

Qymatix Solutions GmbH
Haid-und-Neu-Strasse 7
76131 Karlsruhe
Germany

Contact
Phone +49 (0) 721 86016373
Telefax +49 (0) 721 174268
E-Mail info@qymatix.com

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