Q9 Digital LLC General Terms of Use

Last updated June 12, 2019. Replaces all prior versions.

 

Thank you for selecting the Services offered by Q9 Digital LLC and/or its subsidiaries and affiliates (referred to as "Q9", "we", "our", or "us"). Review these Terms of Use ("Agreement") thoroughly. This Agreement is a legal agreement between you (referred to as "you", "your", "customer", "client", "user") and Q9 Digital LLC. By accepting electronically (for example, clicking "I Agree"), installing, accessing or using the Services, you agree to these terms. If you do not agree to this Agreement, then you may not use the Services.

Section A. General Terms

These General Terms of Use ("General Terms"), along with any applicable Additional Terms (see section 1.2 below), Subscription and Cancellation terms and Additional Clauses (collectively "Terms") govern your use of our website, customer support, and services such as Group Sales Tool (collectively “Services”) and software that we include as part of the Services, as well as any applications, Sample Files and Content Files (defined below), scripts, source code, instruction sets, and related documentation (collectively “Software”). If you have entered into another agreement with us concerning specific Services or Software, then the terms of that agreement control where it conflicts with the Terms. As discussed more in section 4 below, you retain all rights and ownership you have in your Content (defined below).

1. Your Agreement with Q9 Digital LLC.

1.1 Choice of Law and Contracting Entity. If you reside in North America (inclusive of United States, Canada, and Mexico), your relationship is with Q9 Digital LLC, a Florida limited liability company, and the Terms are governed by the law of Florida, U.S.A. You may have additional rights under the law. We do not seek to limit those rights where it is prohibited to do so by law.

1.2 Additional Terms. Our Services and Software are licensed, not sold, to you, and may also be subject to one or more of the additional terms as outlined and entered into another agreement with us concerning specific Services or Software. If there is any conflict between the terms in the General Terms and the Additional Terms, then the Additional Terms govern in relation to that Service or Software. The Additional Terms are subject to change.

2. Privacy.

2.1 Privacy. For information about how we collect, use, share or otherwise process information about you, please see our Privacy Policy at: https://www.groupsalestool.com/privacy_statement.html.

2.2 Usage Information. You have the option to share information with us about how you use our Services or Software. This information allows us to provide you with a more personalized experience and helps us to improve product quality and features. You can change your preference any time via telephone or our contact form.

2.3 Our Access to Your Content. Where permitted by law, we will only access, view, or listen to your Content (defined in section 4.1 below) in limited ways. For example, in order to perform the Services, we may need to access, view, or listen to your Content to (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, unlawful, or technical issues; and (c) enforce the Terms

3. Use of Services and Software.

3.1 License. Subject to your compliance with the Terms and the law, you may access and use the Services and Software.

3.2 Q9 Digital LLC Intellectual Property. We (and our licensors) remain the sole owner of all right, title, and interest in the Services or Software. Except as stated in the Terms, we do not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the Services or Software. We reserve all rights not granted under the Terms.

3.3 Storage. When the Services provide storage, we recommend that you also back up your Content elsewhere regularly. We may create reasonable technical limits on file size, storage space, processing capacity, and other technical limits. We may suspend the Services until you are within the storage space limit associated with your account. At the end of your license term, we will use commercially reasonable efforts to allow you to transition your Content out of the Services. The transition must be completed within 30 days from the date of the termination or expiration of your license term. At the end of this 30-day transition period, we reserve the right to delete your Content.

3.4 User-Generated Content. We may host user-generated content from our users. If you access our Services, you may come across user-generated content that you find offensive or upsetting. Your sole remedy is to stop viewing the content. To report the offensive user-generated content, you may contact us at any time via telephone or our contact form.

3.5 Sample Files. “Sample Files” means Q9 Digital LLC-provided files such as content images, clip art, stock images, or sounds for use in tutorials, demonstrations, and for other Services purposes, which may be identified as sample files. Sample Files cannot be used for any other purpose than for which they were provided. You cannot distribute Sample Files on a stand-alone basis (i.e., in circumstances in which the Sample Files constitute the primary value of the product being distributed), and you cannot claim any rights in the Sample Files.

3.6 Content Files. "Content Files" means Q9 Digital LLC assets provided as part of the Services and Software. Unless documentation or specific licenses state otherwise, we grant you a personal, non-exclusive, non-sub licensable, and non-transferable license to use the Content Files to create your end use (i.e., the derivative application or product authored by you) into which the Content Files, or derivations thereof, are embedded for your use ("End Use"). You may modify the Content Files prior to embedding them in the End Use. You may reproduce and distribute Content Files only in connection with your End Use, however, under no circumstances can you distribute the Content Files on a stand-alone basis, outside of the End Use.

 

3.7 Other License Types.

(a) NFR Version. We may designate the Services or Software as “trial,” “evaluation,” “not for resale,” or other similar designation (“NFR Version”). You may install and use the NFR Version only for the period and purposes stated when we provide the NFR Version. You must not use any materials you produce with the NFR Version for any commercial purposes.

(b) Prerelease Version. We may designate the Services or Software, or a feature of the Services or Software, as a prerelease or beta version (“Prerelease Version”). A Prerelease Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to commercially release the Prerelease Version. You must promptly cease using the Prerelease Version and destroy all copies of Prerelease Version if we request you to do so, or if we release a commercial version of the Prerelease Version. Any separate agreement we enter into with you governing the Prerelease Version will supersede these provisions.

4. Your Content.

4.1 Content. "Content" means any material, such as but not limited to: audio files, video files, electronic documents, or images, that you upload and import into the Services or Software in connection with your use of the Services.

4.2 Ownership. You retain all rights and ownership of your Content. We do not claim any ownership rights to your Content.

4.3 Licenses to Your Content in Order to Operate the Services and Software. We require certain licenses from you to your Content in order to operate and enable the Services and Software. When you upload Content to the Services and Software, you grant us a nonexclusive, worldwide, royalty-free, sub licensable, and transferable license to use, reproduce, display, distribute, modify (so as to better showcase your Content, for example) and translate the Content as needed in response to user driven actions (such as when you choose to privately store or share your Content with others). This license is only for the purpose of operating or improving the Services and Software.

4.4 Sharing Your Content.

(a) Sharing. Some Services and Software may provide features that allow you to Share your Content with other users or to make it public. “Share” means to email, post, transmit, upload, or otherwise make available (whether to us or other users) through your use of the Services and Software. Other users may use, copy, modify, or re-share your Content in many ways. Please carefully consider what you choose to Share or make public as you are responsible for the Content that you Share.

 

(b) Level of Access. We do not monitor or control what others do with your Content. You are responsible for determining the limitations that are placed on your Content and for applying the appropriate level of access to your Content. If you do not choose the access level to apply to your Content, the system may default to its most permissive setting. It is your responsibility to let other users know how your Content may be shared and to adjust the setting related to accessing or sharing your Content.

(c) Comments. The Services and Software may allow you to comment on Content. Comments are not anonymous, and may be viewed by other users. Your comments may be deleted by you, other users, or us.

4.5 Termination of License. You may revoke this license to your Content and terminate our rights at any time by removing your Content from the Service. Some copies of your Content may be retained as part of our routine backups, however.

4.6 Feedback. You have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). If you submit Feedback to us however, then you grant us a non-exclusive, worldwide, royalty-free, sub-licensable, and transferable license to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.

5. Account Information.

You are responsible for all activity that occurs via your account. Please notify Customer Support immediately if you become aware of any unauthorized use of your account. You may not (a) Share your account information (except with an authorized account administrator); or (b) use another person’s account. Your account administrator may use your account information to manage your use and access to the Services and Software.

6. User Conduct.

6.1 Responsible Use. The Q9 Digital LLC communities often consist of users who expect a certain degree of courtesy and professionalism. You must use the Services and Software responsibly.

6.2 Misuse. You must not misuse the Services or Software. For example, you must not:

(a) copy, modify, host, stream, sublicense, or resell the Services or Software;

(b) enable or allow others to use the Services or Software using your account information;

(c) use the Software to construct any kind of database;

(d) access or attempt to access the Services or Software by any means other than the interface we provide or authorize;

(e) circumvent any access or use restrictions put into place to prevent certain uses of the Services or Software;

(f) share Content, or engage in behavior that violates anyone’s intellectual property rights (“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights);

(g) upload or share any Content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;

(h) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

(i) attempt to disable, impair, or destroy the Services and Software;

(j) upload, transmit, store, or make available any Content or code that contains any viruses, malicious code, malware, or any components designed to harm or limit the functionality of the Services or Software;

(k) disrupt, interfere with, or inhibit any other user from using the Services or Software (such as stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way);

(l) engage in chain letters, junk mails, pyramid schemes, phishing, spamming, or other unsolicited messages;

(m) place an advertisement of any products or services in the Services except with our prior written approval;

(n) use any data mining or similar data gathering and extraction methods in connection with the Services; or

(o) violate applicable law (including, but not limited to, where applicable, COPPA).

7. Fees and Payment.

7.1 As consideration for the Services and Software, Q9 Digital LLC issues invoice each month for any applicable services based on a 12-month annual calendar. Invoices shall be due and payable within 30 days of date of receipt. Invoices are to be paid by check or money order to: Q9 Digital LLC at such address within the United States of America as specified on each invoice.

7.2 Taxes and Third-Party Fees. You must pay any applicable taxes and third-party fees (including, for example, telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees, and foreign transaction fees). We are not responsible for these fees. Contact your financial institution with questions about fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses

7.3 Credit Card Information. If you do not notify us of updates to your payment method, to avoid interruption of your service, we may participate in programs supported by your card provider to try to update your payment information. You authorize us to continue billing your account with the updated information that we obtain.

8. Your Warranty and Indemnification Obligations.

8.1 Warranty. By uploading your Content to the Services or Software, you agree that you have: (a) all necessary licenses and permissions to use and Share your Content; and (b) the rights necessary to grant the licenses in the Terms.

8.2 Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damage, including reasonable attorneys’ fees, arising out of or related to your Content, your use of the Services or Software, or your violation of the Terms.

9. Disclaimers of Warranties.

9.1 Unless stated in the Additional Terms, the Services and Software are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties, express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the Services. We further disclaim any warranty that (a) the Services or Software will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results obtained from the use of the Services or Software will be effective, accurate, or reliable; (c) the quality of the Services or Software will meet your expectations; or (d) any errors or defects in the Services or Software will be corrected.

9.2 We specifically disclaim all liability for any actions resulting from your use of any Services or Software. You may use and access the Services or Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use of and access to any Service or Software.

9.3 If you post your Content on our servers to publicly Share through the Services, we are not responsible for: (a) any loss, corruption, or damage to your Content; (b) the deletion of Content by anyone other than Q9 Digital LLC; or (c) the inclusion of your Content by third parties on other websites or other media.

10. Limitation of Liability.

10.1 Unless stated in the Additional Terms, we are not liable to you or anyone else for any loss of use, data, goodwill, or profits, whatsoever, and any special, incidental, indirect, consequential, or punitive damages whatsoever, regardless of cause (even if we have been advised of the possibility of the loss or damages), including losses and damages (a) resulting from loss of use, data, or profits, whether or not foreseeable; (b) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action; or (c) arising from any other claim arising out of or in connection with your use of or access to the Services or Software. Nothing in the Terms limits or excludes our liability for gross negligence, for our, or our employees’, intentional misconduct, or for death or personal injury.

10.2 Our total liability in any matter arising out of or related to the Terms is limited to US $100 or the aggregate amount that you paid for access to the Service and Software during the three-month period preceding the event giving rise to the liability, whichever is larger. This limitation will apply regardless of the form or source of claim or loss, whether the claim or loss was foreseeable, and whether a party has been advised of the possibility of the claim or loss.

10.3 The limitations and exclusions in this section 10 apply to the maximum extent permitted by law.

11. Termination.

11.1 Termination by You. You may stop using the Services and Software at any time. Termination of your account does not relieve you of any obligation to pay any outstanding fees.

11.2 Termination by Us. If we terminate the Terms, or your use of the Service(s) for reasons other than for cause, we will make reasonable efforts to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your Content. Unless stated in any Additional Terms, we may, at any time, terminate your right to use and access the Services or Software if:

(a) you breach any provision of the Terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);

(b) you fail to make the timely payment of fees for the Services or Software, if any;

(c) you materially breach any provision of the Terms, and (i) the breach cannot be corrected; or (ii) we notify you of the breach and you fail to correct it within 14 days of the notice;

(d) you physically, verbally, or through other means abuse, threaten, bully, or harass us or our personnel (in such circumstances, we may alternatively suspend or restrict your access to the Services or Software);

(e) you have repeatedly made complaints in bad faith or without a reasonable basis, and continue to do so after we have asked you to stop (in such circumstances, we may alternatively suspend or restrict your access to the Services or Software);

(f) we are required to do so by law (for example, where the provision of the Services or Software to you is, or becomes, unlawful);

(g) we elect to discontinue the Services or Software, in whole or in part (such as if it becomes impractical for us to continue offering Services in your region due to change of law); or

(h) there has been an extended period of inactivity in your free account.

11.3 Termination by Group Administrator. Group administrators for a Service such as “Group Sales Tool” may terminate a user’s access to a Service at any time. If your group administrator terminates your access, then you may no longer be able to access Content that you or other users of the group have shared on a shared workspace within that Service.

11.4 Survival. Upon the expiration or termination of the Terms, some or all of the Services and Software may cease to operate without prior notice. Any perpetual licenses you have will continue in full force and effect, however. Your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in the Terms will survive.

12. Investigations.

12.1 Screening. We do not review all content uploaded to the Services or Software, but we may use available technologies, vendors, or processes to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing).

12.2 Disclosure. We may access or disclose information about you or your use of the Services or Software: (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when we, in our discretion, think it is necessary to protect the rights, property, or personal safety of us, our users, or the public.

13. Trade Control Laws.

The Services or Software and your use of the Services and Software, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Services and Software. You agree to comply with all the laws, restrictions, and regulations.

14. Dispute Resolution.

14.1 Process. If you have any concern or dispute, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, any resulting legal actions must be resolved through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify.

14.2 Rules. If you reside in the Americas, JAMS will administer the arbitration in Monroe County, Florida pursuant to its Comprehensive Arbitration Rules and Procedures. If you reside the Americas, there will be one arbitrator that you and Q9 Digital LLC mutually select. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English (at the expense of the party presenting the witness). Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over you and us.

14.3 No Class Actions. You may only resolve disputes with us on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.

14.4 Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services or Software in violation of the Terms, you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

15. Updates and Availability.

15.1. Updates to the General Terms and Additional Terms. We may modify these General Terms, any Additional Terms or Additional Clauses, for example, to reflect changes to the law or changes to our Services or Software. You should look at the Terms regularly. We will post notice of modifications to these General Terms and Additional Terms on this page. By continuing to use or access the Services or Software after the revisions are in effect, you agree to be bound by the revised Terms.

15.2. Updates to the Services and Software. We may modify, update, or discontinue the Services or Software (including any portions or features) at any time, without liability to you or anyone else. However, for changes to paid offerings, we will make reasonable efforts to notify you of the modification, update or discontinuation. If we discontinue the Services or Software in its entirety, we will also allow you a reasonable time to download your Content and we may provide you with a pro rata refund for any unused fees for that Service or Software that you prepaid.

15.3. Availability. Webpages describing the Services are accessible worldwide, but this does not mean all Services or service features are available in your country or that user-generated content available via the Services is legal or available in your country. Access to certain Services (or certain Service features, Sample Files or Content Files) in certain countries may be blocked by us or foreign governments. It is your responsibility to make sure your use of the Services is legal or available where you use them. Services are not available in all languages.

16. No Modifications, Reverse Engineering.

Except as expressly permitted in the Terms, you may not (a) modify, port, adapt or translate any portion of the Services or Software; or (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or any portion of any Service or Software.  If the laws of your jurisdiction give you the right to decompile the Software to obtain information necessary to render the licensed portions of the Services or Software interoperable with other software, you must first request such information from us.  We may, in our discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee, on your decompilation of the Services or Software to ensure that our and our suppliers’ proprietary rights in the Services and Software are protected.

17. Miscellaneous.

17.1 English Version. The English version of the Terms will be the version used when interpreting or construing the Terms.

17.2 Notice to Q9 Digital LLC. You may send notices to us at the following address: Q9 Digital LLC, 31 Ocean Reef Drive, C101-218, Key Largo, Florida, 33037, USA, Attention: General Counsel.

17.3 Notice to You. We may notify you by email, postal mail, postings within the Services, or other legally accepted means.

17.4 Non-Assignment. You may not assign or otherwise transfer the Terms or your rights and obligations under the Terms, in whole or in part, without our written consent, and any such attempt will be void. We may transfer our rights under the Terms to a third party.

17.5 Headings. Headings used in these General Terms or Additional Terms are provided for convenience only and will not be used to construe meaning or intent.

17.6 Severability. If any provision of these General Terms or any Additional Terms is held invalid or unenforceable for any reason, the General Terms and any Additional Terms will continue in full force and effect.

17.7 No Waiver. Our failure to enforce or exercise any provision of the Terms is not a waiver of that provision.

20. DMCA.

We respect the Intellectual Property Rights of others and we expect our users to do the same. We will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”). To learn more about Q9 Digital LLC's IP Takedown policies and practices, contact us at any time via telephone or our contact form.

21. General Data Protection Regulation (GDPR)

Digital LLC is committed to compliance with the European Union's General Data Protection Regulation (GDPR), and is committed to protecting the personal data of its employees and vendors as well as helping customers to meet their GDPR obligations. For more information see our Privacy Policy or contact us at any time via telephone or our contact form.

22. Accessibility.

Q9 Digital, LLC is committed to providing a website interface that can be accessed by all users with disabilities. We do this by working to maintain compliance with the World Wide Web’s Consortium’s Web Content Accessibility Guidelines 2.0 Level AA (WCAG 2.0 AA) We will continue to address all accessibility opportunities as WCAG 2.0 AA Guidelines evolve. For more information see our Accessibility Statement. If you would like to report any accessibility issues, please contact us using our contact form.

Section B. Subscription and Cancellation terms

The following terms apply, unless Q9 Digital LLC notifies you otherwise in writing. Compensation for Services and Software offered are based on non-reconcilable (one-time charges based on a written estimate) fees and reoccurring (Subscription) fees.

1. NON-RECONCILABLE FEE(S) relating to the design, configure and deployment of the Services and Software.
2. REOCCURRING FEES (Subscription) relating to the licensing, administration, maintenance and regular support of the Services and Software.
3. Certain recommended and/or requested enhancements may be included at no additional charge in so far as the enhancements can be installed within the existing/native platform.

You may cancel the Services and Software at any time in writing or via telephone. However, cancellation and/or non-use does not relieve you of any obligation to pay any outstanding fees.

 

 

Section C. Additional Clauses

The following describes Additional Clauses governing your use of the Q9 Digital LLC Services and Software as part of a User Group or "Client" and specific clarifications of our obligations when providing those Services and Software. If there is any conflict between the terms in the General Terms and the Additional Clauses, then the Additional Clauses govern in relation to that Service or Software. The Additional Clauses are subject to change.

1. CLIENT CONTENT. All materials, information, factual, promotional, photography, writing, trade secrets or other creative content, including pre-existing trademarks and copyrights (“Client Content”) shall remain the sole property of Client or its respective affiliates, licensees or suppliers, as applicable, and Client, its affiliates, licensees or its suppliers, as applicable, shall be the sole owner of all Client Content and rights in connection therewith. Client hereby grants to Q9 Digital LLC a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Q9’s performance of the work as authorized in this Agreement.

2. THIRD PARTY MATERIALS. Q9 Digital LLC shall inform Client of all proprietary third party materials (“Third Party Materials”) to be procured by Q9 that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, Q9 shall obtain a license for Client to use the Third Party Materials consistent with the usage rights granted herein. Q9 shall indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses, including attorneys’ fees, arising out of any claim, demand, or action by a third party arising out of Q9’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to Third Party Materials procured by Q9 and included in the Product and performance of the Specifications. Client shall indemnify, save and hold harmless Q9 from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to proprietary third party materials procured at the request of Client and included in the Product and performance of the Specifications. Notwithstanding anything in the Agreement to the contrary, such indemnification obligations shall not be subject to limitation or cap.

3. REPRESENTATIONS AND WARRANTIES. Q9 hereby represents, warrants and covenants to Client that:

a. Q9 will provide the Product and performance of the Specifications in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services

b. Except for Third Party Materials and Client Content, the Product and performance of the Specifications shall be the original work of Q9, including its permitted designers and subcontractors;

c. In the event the Product and performance of the Specifications include the work of permitted third party, including, without limitation, designers and subcontractors, commissioned by Q9, Q9 shall have written agreements from such third party granting all necessary rights, title, and interest in and to the Product and performance of the Specifications sufficient for Q9 to perform the services provided in this Agreement; and

d. To the best of Q9’s knowledge, the Product and performance of the Specifications will not infringe the rights of any third party.

4. INDEPENDENT PARTIES. Client and Q9 are independent parties and nothing in this Agreement shall constitute either party as the employer, employee, principal or partner of or joint venture with the other party. Neither Client nor Q9 has any authority to assume or create any obligation or liability, either express or implied, on behalf of the other. Q9 is solely responsible for the professional quality and supervision of Q9’s officers, directors, members, managers, employees, designers, contractors, sub-contractors, agents, and representatives, as applicable, that provide the Product and perform any of the Specifications. All of Q9’s obligations, representations, warranties, covenants, obligations, assignments, and indemnities hereunder extend to Q9’s officers, directors, members, managers, employees, designers, contractors, contractors, agents and representatives that provide the Product and perform the Specifications, including, without limitation, those relating to anticorruption and anti-bribery.

5. PRIVILEGED LICENSE AND COMPLIANCE

5.1 PRIVILEGED LICENSE. Q9 acknowledges that Client and its affiliates are engaged in businesses that are or may be subject to and exist because of privileged licenses or other permits issued by governmental authorities (“Privileged Licensee”). Q9 shall deliver to Client such information Client deems necessary to (a) assure itself that Q9 possesses the character, integrity, and reputation required of those engaged with a Privileged Licensee; and (b) comply with compliance policies of Client and the requests or requirements of governmental authorities with jurisdiction over Client. Q9 represents and warrants that there is nothing in Q9’s background or reputation that would prevent it from conducting business with Client and, that it is not a Federally Prohibited Person or Gaming Prohibited Person (each defined below). Client may terminate this Agreement, without notice, penalty or prejudice and without further liability to Q9 if Client is directed to cease doing business with Q9 by any regulatory authority with jurisdiction over Client; determines in good faith, in its sole and exclusive judgment, that Q9, its affiliates, or any of its or their directors, officers, managers, members, employees, agents or other representatives was, is, might be or is about to be engaged in or involved in any activity or relationship that could or does jeopardize any of the businesses or licenses of Client (including, without limitation, any denial, suspension or revocation or the threat thereof); or is advised by a governmental authority with jurisdiction over Client or receives an opinion by legal counsel that the obligations under this Agreement jeopardizes any of its status as a Privileged Licensee. Q9 shall be entitled to receive all undisputed fees and expenses that have accrued or otherwise become due but are unpaid at the time of termination, if not otherwise prohibited by any applicable regulatory authority.

5.2 COMPLIANCE. Q9 Digital LLC is not, nor, to the best of its knowledge, are any of its affiliates, a Federally Prohibited Person or Gaming, Prohibited Person or Gaming Prohibited Person, and it is in compliance with all applicable orders, rules, regulations, and recommendations of the Office of Foreign Assets Control of the U.S. Department of the Treasury and any laws relating to terrorism or money laundering including, without limitation, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and regulations of the U.S. Treasury Department’s Office of Foreign Assets Control the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (the “USA Patriot Act”), the Money Laundering Control Act (18 United States Code Sections 1956 and 1957). Q9 will not engage in a business relationship with a Federally Prohibited Person or a Gaming Prohibited Person during the pendency of this Agreement. In connection with undertaking Work, Q9 shall comply with all applicable local, state, federal, and international rules, laws, and regulations related to anti-corruption, anti-money laundering, and gaming, including those governing the providing of incentives, inducements, kickbacks, gratuities or bribes, including without limitation the U.S. Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. §§ 78dd-l, et seq.), which preclude giving, offering or agreeing to give anything of value to foreign government officials or holders of and candidates for public office or political parties, their families and agents, directly or indirectly, in connection with obtaining or maintaining contracts or orders or obtaining other benefits.

5.3 DEFINITIONS. “Federally Prohibited Person” means any person: (a) listed in the annex to, or otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transaction with Persons Who Commit, Threaten to Commit, or Support Terrorism (the “Executive Order”) or a person who is identified as or affiliated with a person designated as a terrorist, or associated with terrorism or money laundering pursuant to regulations promulgated in connection with the USA Patriot Act; (b) that is owned or controlled by, or acting for or on behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (c) with whom a regulated lender is prohibited from dealing or otherwise engaging in any transaction by any terrorism or money laundering law, including the Executive Order; (d) who commits, threatens, or conspires to commit or supports “terrorism” as defined in the Executive order; (e) that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, http:// www.treas.gov.ofac/tllsdn.pdf or at any replacement website or other replacement official publication of such list; and (f) who is an affiliate of or affiliated with a person listed above. “Gaming Prohibited Person” means: (x) a person who is identified by any governmental authority as unsuitable to be associated with a gaming facility; (y) a person who has been denied a gaming or nongaming license in any jurisdiction; or (z) a person who has been subject to a suspension or revocation of a gaming or nongaming license in any jurisdiction.

 

6. GENERAL

6.1 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of Florida applicable therein. The parties irrevocably agree (a) that exclusive jurisdiction and venue for any and all mediation, arbitration, claims, controversies, disputes, and causes of actions however arising out of or in any way related to this Agreement shall be in Monroe County, Florida; (b) service of process may be made and personal jurisdiction over a party may be obtained by serving the proceedings upon such party at its address set forth in this Agreement; and (c) waiver of jury in all proceedings.

6.2 SURVIVAL. The confidentiality, indemnification, representations and warranties of the parties set forth herein shall survive the expiration or earlier termination of this Agreement.

6.3 AMENDMENT. This Agreement may be amended or modified only by a written instrument executed by both Client and Q9 Digital LLC.

6.4 NOTICES. All notices required or permitted under this Agreement shall be in writing and shall be deemed effective upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party at the addresses provided with each party’s signature, or at such other address or addresses as either party shall designate to the other in accordance with this provision; provided, however, any notice provided to Client shall not be deemed delivered unless it is concurrently delivered to the address or addresses on file of both the Client and Q9Digital LLC.

6.5 SEVERABILITY. If any provision of this Agreement is found to be invalid or unenforceable in whole or in part, the parties agree the remaining provisions of this Agreement shall remain valid and enforceable to the maximum extent compatible with applicable law.

6.6 SIGNATURES. Where signatures are required, this Agreement may be executed in counterparts. Each party agrees that facsimile or electronic signatures will have the same legal effect as original signatures and may be used as evidence of execution. Signature pages may be detached from counter part documents and reassembled to form duplicate executed originals.

6.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and inure to the benefit of, both parties and their respective permitted successors and assigns. The obligations, rights and agreements of Q9 are personal and shall not be assigned, transferred, or encumbered by Q9 and any attempt to do so shall be void unless consented to by Client, which consent may be withheld in Client’s sole discretion. Client may assign this Agreement to any affiliate or successor of Client, including any corporation with which, or into which, Client may be merged or which may succeed to its assets or business, or to Client’s lender, mortgagee or lessor, and to any other party, all without the consent of Q9.

6.8 THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall create a contractual relationship with, or a cause of action in favor of, a third party against either Client or Q9. The Product and performance of the Specifications is solely for the benefit of Client.

 

Q9 Digital LLC: 31 Ocean Reef Drive, C101-218, Key Largo, Florida, 33037