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Terms of Service

VERSION: 1.0

EFFECTIVE DATE: December 19, 2024

Quency, Co. d/b/a Quency (“Quency”) provides prenatal imaging by using augmented reality in conjunction with 4D ultrasound. Our services include access to the Quency website and software, including the collection and analysis of ultrasound images. Quency is not intended for emergencies or diagnosing medical conditions. If you are experiencing an emergency, you should dial 911 immediately and notify and relevant authorities.

 

QUENCY IS NOT A HEALTH CARE PROVIDER AND DOES NOT PROVIDE MEDICAL ADVICE OR CLAIM TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE OR ILLNESS. 

 

THE SERVICE IS GENERAL IN NATURE AND IS NOT INTENDED FOR ANY PARTICULAR PURPOSE, INCLUDING, IN ANY WAY, TO BE A SUBSTITUTE FOR A MEDICAL EXAMINATION OR ANY PROFESSIONAL MEDICAL ADVICE, MEDICAL OPINION, DIAGNOSIS OR TREATMENT, SYMPTOM ASSESSMENT, OR HEALTH COUNSELING FOR ITS USERS. ALWAYS SEEK THE ADVICE OF APPROPRIATELY QUALIFIED AND REGULATED HEALTHCARE PROVIDERS WITH ANY QUESTIONS YOU MAY HAVE WITH REGARD TO A SPECIFIC MEDICAL CONDITION FOR TREATMENT OF WHICH YOU ARE CONCERNED. IT IS IMPORTANT NOT TO DISREGARD OR DELAY SEEKING CONSULTATIVE MEDICAL ADVICE BECAUSE OF SOMETHING YOU HAVE READ OR VIEWED WHILE USING THE SERVICE. RELIANCE ON ANY INFORMATION PROVIDED BY THE SERVICE IS SOLELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR THE USE OF THE SERVICE AND ITS INFORMATION.

 

ANY INFORMATION CONTAINED HEREIN, OR ON QUENCY SERVICES IS NOT INTENDED TO REPLACE A RELATIONSHIP WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN BEFORE STARTING, STOPPING OR MODIFYING ANY PHYSICIAN-PRESCRIBED TREATMENT OR MEDICATION.

 

Customers (“Customers” or “Customers”) are both the ultrasound clinics and the patients or clients using the ultrasound clinics services. Customers may be required to create an account on the Quency web application (“Quency Account” or “Account”) and will be asked to complete an initial questionnaire in full in order to receive the Service.

 

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING THE SERVICE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL TERMS, CONDITIONS, POLICIES, GUIDELINES AND DISCLOSURES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE, DO NOT USE THE SERVICE.

 

IMPORTANT: These Terms contain a mandatory arbitration provision and other dispute resolution agreements that require the use of arbitration on an individual basis and limits the remedies available to you and Quency in the event of certain disputes. That means that you and Quency are each giving up rights to sue each other in court or in class actions of any kind.

 

WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS: While there are important points throughout these Terms, please note that the warranty disclaimers and limitations on Quency's liability are explained in Sections 23-24.

1. Acceptance of Terms of Service

These Terms of Service (“Terms”) govern your (“you” “customer” or “user”) access to and use of our products, programs, website, data analysis, collection and analysis of ultrasound data (e.g. images, videos, and volumes (collectively, the “Service”) provided by Quency, Co. d/b/a Quency (“Quency,” “we”, or “us”).

 

These Terms do not alter in any way the terms or conditions of any prior written agreements you may have with Quency separately, if any, on other matters.

 

By using the Service, accessing any content made available through the Service, or clicking to accept or agree to these Terms, where this option is made available to you for any Service, you agree to be bound by these Terms. 

 

If you do not agree to these Terms, please immediately discontinue use of the Service. Your access to and use of the Service, and any Accounts you establish in connection with the Service, are conditioned on your compliance with these Terms. If Quency, in its sole discretion, determines that you have failed to comply with any of these Terms, it shall have the right to terminate your access to and use of the Service or any component of it and any associated Account(s) therewith immediately and without further notice.

2. Order of Precedence

Please note that some features of the Service may be provided under additional or separate legal agreements or consents between Quency and you. If that is the case, when you first participate in or use such features, you will be provided an opportunity to review and agree to the terms that govern such Service features. If there is a conflict between these Terms and legal terms applicable to a particular Service feature the terms in such agreements will take precedence over these Terms with respect only to those specific Service features. These Terms do not alter in any way the terms or conditions of any prior written agreements you may have with Quency separately, if any, on other matters.

3. Revisions and Updates

Quency reserves the right to change, revise, update, or modify these Terms or any notices, policies, or guidelines incorporated herein at any time and in its sole discretion. Any changes or modifications will be effective as of the date stated at the top of these Terms immediately upon posting of the revisions on the Service. Your continued use of the Service following the posting of such changed or modified Terms will constitute your acceptance of such changes or modifications. Therefore, you should frequently review these Terms and any applicable policies to understand the most current terms and conditions that apply to your use of the Service.

4. Privacy Policy

Please review the Quency Privacy Policy, which describes in detail on how Quency collects, uses, stores, maintains, processes, discloses, and protects your information when using our Service.

5. Ownership of Service and Materials

The Service and all designs, text, graphics, pictures, images, content, videos, packaging, formulas, technology, know-how, information, data, recommendations, results, and software (including Software as defined below) contained in or comprising of the Service, except for the User Content as defined below (collectively, the “Materials”), are the exclusive property of Quency or Quency’s licensors and are protected by U.S., Canadian and international copyright, trademark, trade secrets, patent, and other intellectual property laws. The Materials are provided for informational purposes only, and you are solely responsible for verifying the accuracy, completeness, and applicability of the Materials and for your use of the Materials.

6. Software and Mobile Applications

Your rights in use of any software including any mobile applications (“Software”) that is not accompanied by a separate license agreement are governed by and subjected to the license granted in these Terms. You may not copy, modify, create derivative works of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software unless otherwise specifically agreed to in writing between you and Quency. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Quency for use in accessing the Service. Any rights not expressly granted herein are reserved.

 

All Quency Software used in the Service are licensed, not sold, to you, and Quency and its licensors retain ownership of all copies of the Quency Software even after installation on your computers, mobile devices, tablets, and/or other applicable devices.

7. Limited License to Use

Subject to your compliance with these Terms, Quency grants you a limited, non-exclusive, non-transferable revocable license to use of the Service and the Materials. This license shall remain in effect until and unless terminated by you or Quency. You represent and agree that you will not redistribute, resell, or transfer the Service or the Materials. For greater certainty, Quency, in its sole discretion, may terminate or suspend your license to use some or all the Service or Materials at any time, for any reason or no reason, with or without notice to you, and without any liability to you or any other person. If Quency terminates or suspends your license to use the some or all the Service or Materials, these Terms will nevertheless continue to apply in respect of your use of the Service and Materials prior to such termination or suspension.

8. Conditions of Use

In order to use the Service, you must (a) be at least 18 years old; (b) be a person not barred from receiving the Service under the laws of the country of residence from which you use the Service; or (c) if you are below the legal age of majority in your jurisdiction, only use the Service under the supervision of a parent or legal guardian who agrees to be bound by these Terms and who has submitted to Quency the proper parental/guardian consent forms. The Service are not intended for or offered to individuals under the age of 18 in any jurisdiction, even with parental/guardian consent.

9. Registration

Customers may be required to create an account (“Quency Account” or “Account”) and will be asked to complete an initial questionnaire in full in order to view the ultrasound images sent by Quency.

 

  1. When you create a Quency Account, you are required to provide certain information about yourself and about purchasing the Service (e.g. name, email, address, password, birthdate, and payment information).

  2. You must (a) provide accurate and complete registration information, and (b) update such information from time to time using your Account as necessary to keep your registration information current and accurate. By establishing a Quency Account, you represent and warrant that you have the right to, and are authorized to, provide the information you provide for yourself or those for whom you have legal authority to agree, when you create a Quency Account.  Quency recommends that you use a strong password, that you change it frequently, and that you do not reuse passwords. You agree not to disclose your username or password to any third party. Quency may reject, or require that you change your password. You are responsible for maintaining the accuracy and confidentiality of your Account information and password and for restricting access to such information and to your computer or device. 

  3. You further agree abide by all applicable local, state, provincial, territorial, national and foreign laws, treaties and regulations in connection with use of the Service, including those related to data privacy, international communications and the transmission of technical or personal information. You agree to immediately notify Quency of any unauthorized access or use of your password or Account or any other breach of security. All activities that occur under your Account will be your responsibility. You agree that Quency will not be liable for any loss or damage arising from your failure to comply with this Section.

10. Charges and Billing

When you purchase any Service offered by Quency you authorize us to charge your credit card or other payment method you have chosen (“Payment Method”) for all fees applicable to your purchase of the Service if you ordered them. When you purchase a subscription Service offered by Quency, you authorize us to charge your Payment Method at the time of purchase, and on a recurring basis while you maintain your subscription. Such charges may be made in advance monthly or in accordance with the subscription frequency associated with your Account. You must provide a valid Payment Method when order and use the Service. You represent and warrant that you are authorized to use such Payment Method, and you agree to pay all fees and charges incurred using that Payment Method by your Account. You agree and authorize us to provide your Payment Method information and related personally identifiable information to our designated third-party service provider(s) including payment processors for their use in charging you for the Service ordered by you. You agree to immediately notify Quency of any changes to your information, including your billing address or the Payment Method used for payments.

 

If for any reason, Quency does not receive payment from your Payment Method, (i) you agree to pay all amounts due on your Account upon demand, and (ii) you agree that Quency may deactivate or suspend your subscription and/or Account and continue to attempt to charge your Payment Method until the payments due are received. Upon receipt of all payments due, your subscription and your Account will be re-activated.

 

We reserve the right to accept or reject orders for Service for any reason. 

 

You agree that our subscription fees are subject to change, however, we agree that we will notify you before any changes to subscription fees. Quency reserves the right to refuse providing the Service to any customer or potential customer and shall not be required to provide a basis or reason for such a decision.

 

Your Service subscription will automatically renew until you cancel it or until it is terminated by Quency. If you want to cancel or pause your subscription, you can do so by sending an email with your name and the email address associated with your Quency account with subject "Cancel Membership" to: support@quency.co .  Quency reserves the right to request additional information for verification purposes prior to canceling your subscription.

 

All fees and charges for Service are exclusive of sales tax and other applicable taxes, and you are responsible for payment of any and all applicable taxes (other than taxes on Quency income). Sales Tax as used herein shall mean any national, state, provincial, territorial and local sales, use, excise, ad valorem, value-added, services, consumption, or other taxes and duties imposed on the Service rendered hereunder that Quency is permitted to pass on to its customers.

YOU AGREE THAT ANY PAYMENT SUBMITTED BY YOU TO QUENCY FOR SERVICES IS SUBMITTED ON BEHALF OF YOURSELF, WITHOUT EXPECTATION OF ANY REIMBURSEMENT BY THIRD-PARTY PAYERS. QUENCY DOES NOT UNDERTAKE TO SUBMIT ANY INFORMATION PROVIDED BY YOU FOR REIMBURSEMENT OR PAYMENT FROM PRIVATE INSURANCE CARRIERS, MEDICARE, MEDICAID, OR ANY OTHER THIRD-PARTY PAYERS, AND QUENCY EXPRESSLY DISCLAIMERS ANY LIABILITY, EXPENSES OR DAMAGES RELATING TO THE FOREGOING.

11. Quency Research

“Quency Research” is a research program operated by Quency to make new discoveries about ultrasound imaging. Quency Research is an opt-in program, meaning that participation is entirely voluntary. Quency Research may be sponsored by, conducted on behalf of, or in collaboration with third parties. You are not required to participate in Quency Research to make use of the Service.

 

By opting into Quency Research, Customers agree to, and hereby do, transfer and assign to Quency and its assigns and successors all right, title, and interest in and to the Ultrasound Data (e.g. images, videos, and volumes), self-reported information, analysis, and other data derived therefrom. If laws in certain jurisdictions limit such transfer and assignment, you agree to grant Quency an exclusive, worldwide, irrevocable, royalty-free, sublicensable, and perpetual license to use the aforesaid data. You understand and agree that Quency may use your Ultrasound Data and any data related thereto or derived therefrom (including, without limitation, your answers to questionnaires submitted by Quency as part of the Service or information regarding you, your health, lifestyle or medical history submitted by you to Quency), in accordance with the terms of our Privacy Policy.

12. Unlawful and Prohibited Use

As a condition for using the Service, you represent and agree not to engage in any of the following activities that are unlawful or prohibited by these Terms:

 

  1. unauthorized reselling or commercial (non-personal) use of the Service or the Materials;

  2. distributing (online or offline) the Service or the Materials without a separate and validly executed agreement with Quency;

  3. misrepresenting the identity or create false or deceitful identities of persons and applicable details in order to use the Service;

  4. altering, modifying, reproducing, copying or making derivative works from all or any part of the Service or Materials or any part, feature, function or user interface of the Service

  5. any use of automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Service;

  6. downloading (other than page caching) any portion of the Service, the Materials, or any information contained therein, except as expressly permitted;

  7. attempting to gain unauthorized access to Quency’s servers or computer systems or to engage in any activity that disrupts, damages, disables, diminishes the quality of, interferes with the performance of, or impairs the functionality of, any part of the Service;

  8. collecting or harvesting of any information including, but not limited to, personal information, company and individual names, domain names or account names, from the Service;

  9. misrepresenting personal information in order to obtain an Account or Service;

  10. impersonating, falsifying identity, or misrepresenting your affiliation with Quency or any other person or entity;  

  11. using the Service or Materials outside of the countries where such use is permitted;

  12. modifying or disguising the origin of any content transmitted through the Service or Materials in a manner that leads to consumer confusion;

  13. using the content in Service, Materials or their promotional materials for unauthorized advertising, pyramid schemes, or offer to sell or buy any goods or services except as permitted by law;

  14. unauthorized using or displaying of branded trademarks, trade names, and key words associated with the Service or Materials in online media that amounts to false association and cause consumer confusion;

  15. engaging in "framing," "mirroring," or otherwise simulating the appearance or function of Quency or our Service or Materials;

  16. uploading or transmitting any content that you do not have a legal right to transmit (such as insider information, proprietary and confidential information, personal health information, content that infringes intellectual property rights of a third party, etc.), or any virus, Trojan horse, worm, or other software, script or code, the effect of which is to permit unauthorized access to, or to alter, disable, encrypt, erase, or otherwise harm, any computer, systems, software or data;  

  17. reverse engineering the Service, the Software or any other software used to provide them;

  18. probing, scanning, or testing the vulnerability of the Service or any network connected to them, or breach the security or authentication measures on them or on any network connected to them;

  19. violating these Terms, code of conduct or other guidelines, which may be applicable to a specific area of the Service or have been notified;

  20. using the Service or the Materials other than for their intended purposes;

  21. violating of local, state, national, or international law, or any regulations having the force of law;

  22. damaging he hardware (e.g. VR headsets, computers) Quency lends to the Customers, and

  23. engaging in any other conduct that violates these Terms or our Privacy Policy.

13. Breach  

You represent and agree that you are solely responsible for, and Quency has no responsibility to you or to any third party for, any breach of your obligations under these Terms and other terms you have agreed to with Quency and its partners, and you are solely liable for the consequences (including any loss or damage which Quency and their licensors or third parties may suffer) due to any such breach or violation of these Terms. In case of violation of any one or more of these Terms, or if Quency has a reasonable ground to suspect that you have violated these Terms, you understand and agree that Quency has the right to suspend or terminate your Account, refuse any and all current or future access to and use of the Service, and seek injunctive relief, monetary damages, and any other remedies available in law and equity.

14. Modifications, Updates, and Delays

Quency reserves the right at any time to modify, revise, update, and discontinue the Service (or any part thereof) with or without notice. You acknowledge and agree that modifications or updates may result in delays in computations for some features of Service.

 

Certain conditions and circumstances associated with the business operations of the Service may result in unexpected delays or processing, and analysis of the ultrasound images. Quency may, but is not obligated to, provide you with specific notice applicable to these delays. While Quency endeavors to take commercially reasonable steps to minimize such delays, Quency shall not be liable to you or to any third party for any such delays associated with the Service.

 

Sometimes, Quency may not be able to process Ultrasound Data or our testing process may result in errors due to several reasons which may include software issues, network issues, or hardware issues. This may result in unexpected delays in processing your ultrasound image.

15. New and Additional Features

You acknowledge that Quency may, from time to time, offer optional new or additional technologies or features to the Service that may only be available to you with an additional fee, and that you may have to pay additional fees in order to have these features in your Service. Such features will be optional and purchasable at your choice; you will not be charged for these features unless you specifically elect to purchase them.

16. Consent to Receive Emails and Notice

The Service may include push notifications or other mobile communication capabilities. You hereby approve Quency’s delivery of electronic communications directly to your mobile device. These notifications may include information regarding your shipments, recent transactions or payment reminders. The notifications may be delivered to your device even when the Service is running in the background. You have the ability, and it is your responsibility, to control the notifications you do, or do not, receive through your device. It is your responsibility to keep your account information secure when using this feature.

 

By using the Service, you consent to receive emails from Quency relating to the provision of the Service.

 

You also may receive marketing, promotional and commercial emails from us where Quency has consent to do so. Where Quency has such consent, we may use your information to send you news or product updates. You may “opt out” of receiving marketing or promotional email from Quency by following “unsubscribe” instructions or using “unsubscribe” links within communications we send. We will endeavor to respond to your opt-out request promptly, but we ask that you please allow us a reasonable time to process your request.  Please note that if you opt-out from receiving marketing-related emails, we may still need to send you communications about your use of the Service, such as technical notices, purchase confirmations, important Quency policies, or other matters.

17. Waiver of Rights

You understand that you will not receive and you agree to waive any compensation (by way or cash, equity, use rights, or other current or future financial benefit or reward) from Quency as a result of having any data or ultrasound images related thereto or derived therefrom analyzed, processed, made the subject of Quency Research, Research Studies, or included in studies with our collaborators, including commercial partners as stated in these Terms. You understand that by providing any data or ultrasound images, you acquire no rights in or title to any Research, Research Studies, or commercial products that may be developed by Quency or its collaborating partners. You specifically understand that you will not receive compensation for any commercial products that use, include or result from information you provide to Quency as part of Research and Research Studies, and you agree to waive any and all rights or claims to them.

18. User Representations

By accessing and using the Service, you agree to, acknowledge, and represent as follows:

 

  1. You understand that Quency does not provide medical advice through the Service;

  2. You understand that Ultrasound Data, insights, recommendations, and information you received or learned from using the Service are not designed to independently diagnose, prevent, or treat any condition or disease or to ascertain the state of your health or treatment thereof in the absence of specific medical advice and clinical diagnosis;

  3. You understand that the Ultrasound Data included in any Service, and associated recommendations are intended for research, guidelines, informational, and educational purposes only, and that while this information might point to a possible diagnosis or treatment, it should always be confirmed and supplemented by specific medical and clinical testing results; and

  4. You represent that you are eighteen (18) years of age or older with capacity to enter into binding contracts based on the laws of the country of your residence, or have provided to Quency the parental/guardian consent forms required for you to use the Service;

  5. You acknowledge and agree that except when applicable law requires, Quency has no responsibility or liability for the deletion of, erasure, or failure to store any information, communications, resulting data, or content stored or transmitted by the Service;

  6. You agree that Quency has no responsibility or liability for the loss of data due to malfunction or destruction of data servers or other catastrophic events;

  7. You take responsibility for all possible consequences resulting from your sharing with others access to or use of your Ultrasound Data;

  8. You understand that all your personal information will be stored in Quency cloud-based servers and will be processed in accordance with our Privacy Policy;

  9. You understand that by providing any Ultrasound Data , self-reported information, and having them processed, you acquire no ownership or licensing rights in any research, research studies, or commercial products that may be developed by Quency or its collaborating partners. You specifically understand that you will not receive any current or future compensation for any research, research studies, or commercial products that include or result from self-reported information, and Ultrasound Data;

  10. You agree that you have the authority, under the laws of the jurisdiction in which you reside, to provide these representations and warranties;

  11. In case if you breach any one or more of these representations, Quency has the right to suspend or terminate your Account and refuse any and all current or future Service.

19. Termination

These Terms will continue to be effective until terminated by either you or Quency as set out in this section. You may terminate your legal agreement with Quency, by notifying Quency at any time in writing, along with a request to close your Account for the Service. Your notice should be sent, in writing, by email addressed to: support@quency.co . Upon receipt of a notice online (by email), Quency will send you an email asking for confirmation of your request, and your notice will be effective following receipt of a second email from you by Quency confirming that you are requesting closure of your Account, and Quency confirming such closure.

 

Quency may at any time, terminate its agreement and Accounts with you where: (i) you have breached, or Quency suspects that you have breached, any of these Terms; (ii) Quency is required to do so by law; (iii) an Quency Service partner has terminated its relationship with Quency or ceased to offer the Service to you; (iv) Quency is no longer providing the Service to users in your jurisdiction; or (v) provision of Service to you is no longer commercially viable.

 

You acknowledge and agree that Quency shall not be liable to you or any third party for its termination of this agreement, your Account, or access to the Service.

 

When these Terms come to an end, all of the legal rights, obligations, and liabilities that you and Quency have benefited from, been subject to, or that have accrued over time while these Terms have been in force or that were expressed to continue indefinitely, shall be unaffected by this termination, and shall continue to apply to such rights, obligations, and liabilities indefinitely.

20. Possible Risks and Considerations

By utilizing the Service, you acknowledge and understand the potential risks associated with use of the Service. Some potential risks associated with using the Service are as follows:

 

  1. A specific health or medical condition(s) you may have may not get better or may get worse and you may develop new conditions;

  2. Some of the results and information you receive may generate strong emotions;

  3. You may learn information about yourself that prompts you to consult or follow-up with your care providers. You will be fully responsible for the costs of this follow-up testing, consulting, and any resulting treatment; and

  4. There may be other unknown or additional risks to using the Service that are not foreseeable at present.

21. Warnings & Limitations

By using the Service, you agree to receipt of the following warnings and limitations applicable to the Service, and you assume the risks associated with using the Service:

 

  1. If you have certain medical conditions or are using certain medications, you agree to use the Service only after consulting a health care provider; 

  2. If you feel unwell, ill, or experience any adverse reactions following the use of the Service, you agree to seek medical help immediately and discontinue further use of such Service until after a physician clears them for use again; and

  3. In case of misuse, or allergic reactions experienced by you, you agree to seek immediate medical help as necessary;

 

ANY INFORMATION PROVIDED BY THE SERVICE IS NOT INTENDED TO REPLACE A RELATIONSHIP WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN BEFORE STARTING, STOPPING OR MODIFYING ANY PHYSICIAN-PRESCRIBED TREATMENTS OR MEDICATIONS.

22. Copyright Policy

Quency respects the intellectual property rights of others and expects users of our Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are provided to us in accordance with applicable law. If you believe that your copyrighted materials have been copied in a way that constitutes copyright infringement, please send us a notice with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Quency will also terminate a user’s account if the user is determined to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing in connection with the Service is:

 

SUBMIT VIA EMAIL:

Legal@quency.co

 

BY MAIL:

1803 Grist Stone Ct. NE Atlanta, GA, 30307 US

23. Warranty Disclaimer

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. QUENCY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT OR MATERIALS OF THE SERVICE. QUENCY DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. TO THE EXTENT PERMITTED BY LAW, QUENCY MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO SERVICE, INCLUDING BUT NOT LIMITED TO, THE QUALITY, CONDITION, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SUCH SERVICE. QUENCY IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS CONTAINED IN OR ON THE SERVICE OR ACCESSED THROUGH THE SERVICE.

 

If the Service contain links to other sites and/or resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. Quency has no control over the contents of those sites or resources, and expressly disclaims and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Service, you do so entirely at your own risk and subject to the terms and conditions of use for such websites. Links to third party websites or services on the Service does not constitute an endorsement or approval of such websites or services.

 

In some circumstances, applicable law may not allow for limitations on certain implied warranties. Solely to the extent that such law applies to you, some or all the above disclaimers, exclusions or limitations may not apply to you.

24. Limitation of Liability

IN NO EVENT SHALL QUENCY OR ANY OF ITS AFFILIATES, SUCCESSORS, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, AGGRAVATED OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE SERVICE OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM QUENCY, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, PUBLIC HEALTH CRISIS, PANDEMIC, LOCKDOWNS, EMERGENCY LAWS, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO QUENCY’S SERVICE OR QUENCY’S RECORDS. TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF QUENCY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SERVICE, SHALL NOT EXCEED ANY FEES YOU PAID TO QUENCY. IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO QUENCY, SUCH AMOUNT SHALL BE ONE HUNDRED DOLLARS ($100). CERTAIN JURISDICTIONS MAY NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS OF LIABILITY SPECIFIED ABOVE, AND THEREFORE, DEPENDING ON YOUR LOCATION, SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT BE APPLICABLE TO YOU. 

 

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HI FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HI SETTLEMENT WITH THE DEBTOR.”

 

YOU AGREE THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN QUENCY AND YOU.

25. Indemnification

In addition to any other indemnification obligations elsewhere in these Terms, you agree to defend, indemnify and hold harmless Quency, its affiliates, independent contractors, service providers and consultants, and each of their respective directors, employees, and agents, from and against any claims, damages, costs, liabilities, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (i) your use of the Service, including without limitation any actual or threatened suit, demand, or claim arising out of or relating to the use of Materials, the information supplied by you to Quency or to you by Quency, the conduct of your health care provider, your conduct; (ii) your violation of any covenants, representations, warranties or obligations under these Terms; or (iii) your violation of the rights of any third party.

26. Dispute Resolution

Any controversy or claim between the parties or arising out of these Terms or any use of the Service shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the “AAA”). The selected arbitrator shall be experienced in agreements for information technology services, either as an attorney or as an information technology professional. If the parties fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency, or preliminary relief shall be submitted pursuant to the AAA’s Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empaneled, the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such requests. The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted by telephone, videoconference, and other forms of real-time communications. If the arbitrator requires in-person hearings, the hearings shall be held in Atlanta, Georgia. The arbitral award will be final and binding and may be entered and enforced in any court of competent jurisdiction. In no event shall any claim, action or proceeding related in any way to the Service be instituted more than two (2) years after the cause of action arose.

27. Waiver of Jury Trials and Class Actions

BY ENTERING INTO THESE TERMS, YOU AND QUENCY ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU WILL NOT SEEK TO HAVE ANY SUCH DISPUTE HEARD AS A JURY TRIAL OR A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED PROCEEDINGS. IF THIS CLASS ACTION WAIVER IS FOUND TO BE ILLEGAL OR UNENFORCEABLE AS TO ALL OR SOME PARTS OF A DISPUTE, THEN THIS SECTION WILL NOT APPLY TO THOSE PARTS. 

28. Notices

Quency notices to you may be made via email or regular mail to the email address or home address then on file. Quency may also provide notices of changes to these Terms by displaying them on or through the Service. Any notices that you provide to us without compliance with this section on Notices shall have no legal effect. Unless otherwise specifically provided for, any official notices to Quency related to these Terms must be sent to:

 

SUBMIT VIA EMAIL:

Legal@quency.co

BY MAIL:

1803 Grist Stone Ct. NE Atlanta, GA, 30307 US

29. Applicable Law

These Terms and the resolution of any dispute related to these Terms or the Service shall be governed by and construed in accordance with the laws of the State of Georgia, United States of America, without giving effect to that state’s principles of conflicts of laws. Subject to Sections 26 and 27, the federal and state courts of the State of Georgia shall have exclusive jurisdiction over all claims.

30. Severability

If any portion of these Terms is found to be unenforceable, the unenforceable portion will be deemed amended to the minimum extent necessary to make it enforceable, and if it can’t be made enforceable, then it will be severed and the remaining portion will remain in full force and effect. If we fail to enforce any of these Terms, it will not be considered a waiver. Any amendment to or waiver of these Terms must be made in writing and signed by us.

31. Non-assignment

You may not assign this Agreement without the written consent of Quency and any attempt to do so shall be null and void.

32. Relationship

You agree that no joint venture, partnership, employment, or agency relationship is created by these Terms between you and Quency.

33. Waiver

No waiver of any term, provision or condition of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.

34. Force Majeure

If the performance of any part of these Terms by Quency is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, pandemic, public health crisis, judicial or governmental action, emergency, labor disputes, act of God or any other causes beyond the control of either party, Quency shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.

35. Entire Agreement

These Terms constitute the complete and exclusive terms of the agreement between the parties with respect to the use of the Service and any acts or omissions of Quency, and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties with respect to the subject matter thereof.

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