ATTENTION: SUBJECT TO PAYMENT OF THE APPLICABLE FEES, THE SOFTWARE, SERVICES AND DOCUMENTATION PROVIDED UNDER THIS AGREEMENT ARE BEING LICENSED TO YOU BY MASV, A BRAND OF LIVEQOS INCORPORATED (“LIVEQOS”), OR ITS AUTHORIZED DISTRIBUTORS AND ARE NOT BEING SOLD. THIS AGREEMENT CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE SOFTWARE.
TERMS OF SERVICE
Please read these Terms of Service carefully before using the Services.
Your access to and use of MASV and the Services is based on your acceptance of and compliance with these Terms. These Terms apply to all visitors and users who access or use the Services or download or use the MASV applications. If you have purchased any Services, then your purchase order (“Purchase Order”) shall also apply to your use of the Services. In the event of any inconsistency between your Purchase Order and these Terms, your Purchase Order shall take precedence over these Terms only to the extent of such inconsistency.
1. Acceptance of Terms
By accessing or using the Services or MASV you agree to be bound by these Terms and accept all legal consequences. If you do not agree to these Terms, in whole or in part, please do not use the Services or download any MASV applications.
If you are an agent or employee of another entity, you represent and warrant that (a) the individual accepting this agreement is duly authorized to accept this agreement on such entity’s behalf and to bind such entity, and (b) such entity has full power, corporate or otherwise, to enter into this agreement and perform its obligations hereunder.
The Services are made available as part of a simple and fast file transfer system allowing users to move data files via our private global network (the “MASV Platform”), which may be accessed through the MASV applications. LiveQoS may also make available technical publications relating to the installation and operation of the software applications and Services, such as reference, user, installation, systems administrator and technical guides and release notes (the “Documentation”).
We may also offer the ability to provide a professional experience for your end users through custom portals where you can add your own images, logo, email notification templates and use a branded URL (i.e. “company.portal.massv.app”) (“Branded Portal”).
3. Payment for the Service
We offer different Services models which set out different Services levels, fees and invoicing terms. Where we offer more than one Services model, you may select the Services model that suits your needs, and you will be charged the fees for that Services model in accordance with your Purchase Order. We may introduce other Services models in the future. For more information on our Services models and related fees, please visit www.massive.io.
4. Pay-per-use Fees and Taxes
Fees. You agree to pay us all of the fees (collectively the “Fees”) required according to your use of the Services and the Services model which you selected, as set out in your Purchase Order. Unless otherwise specified, Fees are quoted in the United States Dollar (“USD”) currency and are payable before we will transfer of your files over the MASV Platform. All prepaid Fees are non-refundable except in the case of Services interruption or Services error not caused by you that either precludes your file transfer from being receivable by the recipient(s) you designate, or that results in a file being transferred that is damaged, corrupted or otherwise incorrect. For the avoidance of doubt, any temporary suspension of a transfer which is subsequently resumed does not entitle you to a refund.
Payment. Unless otherwise indicated in your Purchase Order, the Fees for the Services are calculated on a “pay-as-you-go” basis and billed on a monthly basis. Payment is due within 15 days of your receipt of a bill. Fees are payable by credit card and you are required to provide valid and up-to-date credit card billing information to us in order to use the Services. By using the Services, you authorize us to charge the credit card on file for any Fees incurred by you. Payments are processed by Stripe Payments, a third-party payment processor and you hereby agree to be bound by the terms of such payment processor.
Failure to Pay Fees When Due. If your account is overdue, in addition to any other rights and remedies, we reserve the right to restrict activity on your account, which means that your access to specific content or features of the Services will be disabled unless or until you pay the outstanding amounts owed for your use of the Services.
Taxes., The Fees are exclusive of applicable taxes. You will be responsible for all sales, use, value added, or other taxes or duties, as applicable, payable with respect to the Services, or otherwise arising out of or in connection with this Agreement, other than our income taxes.
Changes in Fees. We may, at our sole discretion, change our prices or pricing model from time to time. Changes to pricing or pricing models will be implemented immediately as updated on the website or with notice to you and will be applied for all subsequent Services.
Promotional Offers. We may, at our sole discretion, make promotional offers available from time to time, which shall be subject to the terms of each such offer as published by us from time to time. Notwithstanding any such promotional offer terms, we reserve the right to make changes to the terms of such promotional offers or suspend such promotional offers at any time. A promotional offer cannot be sold, transferred or combined with any other offer, and is void if altered or reproduced. A promotional offer is not valid towards the renewal of an existing subscription or prior purchase. A promotional offer has no cash value. We reserve the right to terminate promotional offers at any time, notwithstanding any other terms to the contrary.
Fair Use. Use of the Services is subject to fair usage, and is subject to you using the Services subscribed for under an ordinary range of use and in a way that does not consume excessive or unreasonable capacity in respect of the Services that you are using. We may immediately suspend, restrict, alter or terminate all or part of any Services provided to you or take other necessary protective measures, if we determine that you are contravening this policy, as determined by us at our sole discretion.
Our Services allow you to post, link, store, share, transfer and otherwise make available certain information, text, graphics, videos, or other material (“Content”). You are responsible for the Content that you post on or through the Services, including its legality, reliability, and appropriateness.
You represent and warrant that: (a) the Content is yours (you own it) or you have the right to use, post, link, store, share or transfer it or otherwise make it available and grant us the rights and license as provided in these Terms, and (b) the usage, posting, linking, storing, sharing or transferring of your Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person.
You further represent and warrant that if we provide you with our Services on a Branded Portal, we are not liable to you or any third party for damages arising from the use, re-use or adaptation of any image, logo, email notification template or branded URL chosen by you, including but not limited to copyright protected works or trademarks. You agree to defend, indemnify and hold harmless LiveQoS for any third-party claim alleging infringement of its intellectual property rights based on your use of the Branded Portal or any Services.
We do not actively monitor Content that you post on or through the Services, however we reserve all rights to block or remove communications or materials that we determine to be: (a) abusive, defamatory, or obscene; (b) fraudulent, deceptive, or misleading; (c) in violation of a copyright, trademark or, other intellectual property right of another or; (d) offensive or otherwise unacceptable to us in our sole discretion.
You acknowledge that, by providing you with the ability to view and distribute user-generated content on the Services, we are merely acting as a passive conduit for such distribution and are not undertaking any obligation or liability relating to any Content or activities on the Services.
6. Notice and Take Down
We do not permit copyright infringing activities and infringement of intellectual property rights on the Services, and will remove any text, music, videos or other content if properly notified that such content infringes on another’s intellectual property rights.
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyright, you may submit a notification by providing our Copyright Agent with the following information in writing:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest;
- A description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
- Identification of the URL or other specific location on the Website where the material that you claim is infringing is located;
- Your address, telephone number, and email address;
- 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; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
For questions about our Notice and Take Down procedures, you can contact us by email at [email protected] or by mail at 535 Legget Drive, Suite 500, Ottawa Ontario, Canada, K2K 3B8, attention: LiveQoS Inc., Copyright Agent.
You are responsible for safeguarding the password that you use to access the Services and for any activities or actions under your password, whether your password is with our Services or a third-party service.
You agree not to disclose your password to any third party. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.
8. Intellectual Property
LiveQoS IP. The Services and all content, including but not limited to text, images, graphics or code are the property of LiveQoS and are protected by copyright, trademarks, database and other intellectual property rights. You may display and copy, download or print portions of the material from the different areas of the Services only for your own non-commercial use. Any other use is strictly prohibited and may violate copyright, trademark and other laws. These Terms do not grant you a license to use any trademark of LiveQoS or its affiliates. You further agree not to use, change or delete any proprietary notices from materials downloaded from the Services.
Services license. Subject to these Terms, including payment of all applicable Fees for your Services, LiveQoS grants you a limited, personal, non-transferable, non-sub-licensable, internal license to use the Services during the Term in accordance with any Services specifications indicated on your Purchase Order (including, without limitation, the permitted number of users or total package size).The right to use the Services is licensed, not sold.
Application license. If you download the MASV application, then subject to the terms and conditions of this Agreement and your payment of the applicable Fees, LiveQoS grants you a non-exclusive, non-transferable, non-sublicensable, internal license to use the MASV application and any copies thereof, and as many copies of the Documentation as are reasonably required to support your permitted use of the MASV application. Any copies of the application shall include all trademarks, copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy of the MASV application originally provided to you. No other rights in the MASV application or Documentation are granted to you.
Restrictions. You shall not reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the Services or MASV except to the extent the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary. You acknowledge and agree that no rights in respect to the source code of the MASV application or Services are granted to you. You shall not distribute, lease, rent, grant a security interest in, assign, or otherwise transfer the Services or MASV except as expressly provided in this Agreement. You shall not modify or create any derivatives works of the Services or MASV or merge all or any part of the Services or MASV with another program. You shall not use the Services or MASV or make the Services or MASV available to any third parties as part of any service bureau, time sharing service, application service provider offering, software-as-a-service offering or any other managed service offering. You shall not disclose any performance, benchmarking, or feature-related information about the Services or MASV. You further agree not to disclose, transfer or otherwise provide to any third party any portion of the Services or MASV or Confidential Information, except as expressly permitted herein.
9. Links to Other Web Sites
The Services and the MASV application may contain links to third-party web sites or services that are not owned or controlled by LiveQoS.
LiveQoS has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that LiveQoS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such websites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.
We may terminate or suspend access to our Services immediately, without prior notice or liability, for any reason whatsoever, including, without limitation, if you breach the Terms.
All provisions of the Terms shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Upon termination, your right to use the Services will immediately cease. If you wish to terminate your account, you may simply discontinue using the Services.
You agree to indemnify, defend and hold harmless LiveQoS, its principals, officers, directors, representatives, employees, contractors, licensors, licensees, suppliers and agents, from and against any claims, losses, damages, losses, obligations, costs, actions or demands.
These include but are not limited to: (a) legal and accounting fees resulting from your use of the Services; (b) your breach of any of these Terms; (c) anything you post on or upload to the Services; and (d) any activity related to your account, including your use of the Services in any manner that contravenes applicable laws or regulations. This includes any negligent or illegal conduct by you, any person or entity accessing the Services using your account whether such access is obtained via fraudulent or illegal means.
12. Limitation of Liability
LiveQoS, its directors, employees, partners, agents, suppliers, or affiliates, shall not be liable for any loss or damage, direct or indirect, incidental, special, consequential or punitive damages, including without limitation, economic loss, loss or damage to electronic media or data, goodwill, or other intangible losses, resulting from (a) your access to or use of the Services or MASV; (b) your inability to access or use the Services MASV; (c) any conduct or content of any third-party on or related to the Services MASV; (d) any content obtained from or through the Services MASV; and (e) the unauthorized access to, use of or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other claim in law, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LIVEQOS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE SERVICES OR MASV, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU PURSUANT TO THESE TERMS OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY YOU UNDER THE TERMS FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OR DEFAULT OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER LIVE QOS NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.
13. Disclaimer and Non-Waiver of Rights
LiveQoS makes no guarantees, representations, conditions or warranties of any kind as regards the website and associated technology. Any purportedly applicable warranties, terms and conditions are excluded, to the fullest extent permitted by law. Your use of the Services is at your sole risk. The Services and MASV are provided on an “AS IS” and “AS AVAILABLE” basis. The Services and MASV are provided without warranties or conditions of any kind, whether express or implied, including, but not limited to, implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, and non-infringement.
LiveQoS its subsidiaries, affiliates, and its licensors do not warrant that (a) the Services and MASV will function uninterrupted, secure or available at any particular time or location; (b) any errors or defects will be corrected; (c) the Services and MASV are free of viruses or other harmful components; or (d) the results of using the Services and MASV will meet your requirements.
The Services are not fault-tolerant and is not designed, manufactured or intended for use in or in conjunction with on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation systems, air traffic control, or direct life support machines. LiveQoS, its licensors, suppliers, subcontractors and distributors specifically disclaim any express or implied representations, warranties and/or conditions for such uses.
If you breach any of these Terms and LiveQoS chooses not to immediately act, or chooses not to act at all, LiveQoS will still be entitled to all rights and remedies at any later date, or in any other situation, where you breach these Terms. LiveQoS does not waive any of its rights. LiveQoS shall not be responsible for any purported breach of these Terms caused by circumstances beyond its control. A person who is not a party to these Terms shall have no rights of enforcement.
You may not assign, sub-license or otherwise transfer any of your rights under these Terms.
As set out, above, some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you. Provincial laws of Canada may apply to certain products and services provided.
15. Evaluation Trial
If you register for a free trial of the Services, then, subject to these Terms, LiveQoS grants you a limited, personal, non-transferable, non-sub-licensable, internal license to use the Services for evaluation purposes during the applicable Trial Period. For the purposes of these Terms, “Trial Period” means the time starting from your registration to use a free trial of the Services until the earlier of (a) the end of the free trial period for which you registered (which trial period shall be fourteen (3) days unless otherwise stated on the registration page for the free trial version of the Services), (b) your usage of all of the allotted file space; or (c) the start date of any paid subscription for the Services ordered by you. LiveQoS may terminate the Trial Period for any free trial of the Services at any time in LiveQoS’s sole discretion and may accept or decline any request for a free trial version of the Services in its sole discretion. NOTWITHSTANDING ANY OTHER PROVISIONS IN THESE TERMS, ACCESS TO THE FREE TRIAL VERSION OF THE SERVICES IS ON AN “AS-IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND. Additional terms and conditions applicable to the free trial version of the Services may appear on the applicable registration page or Purchase Order. Any such additional terms and conditions are incorporated into these Terms by reference.
16. U.S. Government End-Users
The MASV software application, Services and Documentation are each a “commercial item” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in FAR 12.212, and are provided to the U.S. Government only as commercial end items. Government end users acquire the rights set out in this Agreement for the Rush Application and Services consistent with: (a) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the MASV Application and Services is further restricted by the terms and conditions of this Agreement. For the purposes of any applicable government use, the Rush Application and Services were developed exclusively at private expense, and are trade secrets of MASV (a brand of LiveQoS Incorporated) for the purpose of any Freedom of Information legislation or any other disclosure statute, regulation or provision.
17. Export Restrictions
The MASV application and Services and related information are subject to export and import restrictions. By downloading, installing, or using the MASV application and Services and/or related information, you are representing and warranting that you are not located in, are not under the control of, and are not a national or resident of any country to which the export of the MASV Application and Services and/or related information would be prohibited by the laws and/or regulations of Canada or the United States. You are also representing and warranting that you are not an individual to whom the export of the MASV Application and Services or related information would be prohibited by the laws and/or regulations of Canada or the United States. You shall comply with the export laws and regulations of Canada and the United States that are applicable to the MASV Application and Services and related information and you shall comply with any local laws and/or regulations in your jurisdiction that may impact your right to export, import, or use the MASV Application and Services or related information, and you represent and warrant that you have complied with any such applicable laws and/or regulations. The MASV Application and Services and related information shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the MASV Application and Services or related information.
18. Governing Law; Language
These Terms shall be governed by, and interpreted and enforced in accordance with, the laws in the Province of Ontario and the laws of Canada, as applicable. The provincial courts located in Ottawa, Ontario shall have exclusive jurisdiction over any disputes arising in relation to these Terms or your Purchase Order.
If any provision of these Terms is held to be invalid or unenforceable by a court of competent jurisdiction, then any remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Services, and supersede and replace any prior agreements, oral or otherwise, regarding the Services.
It is the express wish of the parties that this agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, we will make reasonable efforts to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
By continuing to access or use our Services or MASV after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, in whole or in part, please stop using the website and the Services.
20. Contact Us
If you have any questions about these Terms, please contact [email protected].
Last updated: MAY 29, 2019
© Copyright 2012-2019 LiveQoS Inc. The information contained herein is subject to change without notice.