Quantum Capture Inc.

www.QuantumCapture.com

KIOSK HOST LICENSE AGREEMENT (K-HLA)

1.       THANK YOU FOR SELECTING SOFTWARE OFFERED BY QUANTUM CAPTURE INC. (REFERRED TO AS "QUANTUM," "WE," "OUR," OR "US") AND/OR OUR RESELLERS AND LICENSORS. REVIEW THESE LICENSE TERMS ("AGREEMENT") THOROUGHLY. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND QUANTUM. BY ACCESSING OR USING THE SOFTWARE AND/OR BY MAKING A KIOSK EXPERIENCE AVAILABLE TO END-USERS, YOU AGREE TO EACH OF THESE TERMS AND CONDITIONS AND ALL APPLICABLE LAWS AND REGULATIONS.

 

2.       IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE AND DO NOT MAKE A KIOSK EXPERIENCE AVAILABLE TO END-USERS.

 

3.     THESE TERMS AND CONDITIONS MAY CHANGE FROM TIME TO TIME, WITHOUT NOTICE.  ANY SUCH CHANGES WILL BE POSTED TO WWW.QUANTUMCAPTURE.COM/KHLA AND SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING. 

 

4.     In this Agreement:

 

a.     “you” means you or, if you are accepting on behalf of your employer, client or other entity, then “you” means that employer, client or entity;

 

b.    “Quantum”, “us” or “we” means Quantum Capture Inc.;

 

c.     “Software” means the CTRL-HUMAN software platform and any
third party software programs contained therein, if any, in each case supplied by
Quantum herewith, and includes any corresponding documentation, associated
media, 2D and 3D assets, animations, printed materials, and online or electronic documentation, and all updates, patches, new releases or upgrades of the above that may be provided to you. 

 

d.    “Kiosk Experience” means a project or compiled software application created by you, or on your behalf using the Software;

 

e.     “End-User”, “Enduser” or “End-User” means any persons interacting with a Kiosk Experience, which may include you, your personnel, your clients, or members of the general public;

 

f.     “License” shall have the meaning ascribed thereto in Paragraphs 8 and 9 of this Agreement;

 

g.    “Prohibited Uses” shall have the meaning ascribed thereto in Paragraphs 10 and 11 of this Agreement. 

 

5.     If you are accepting this Agreement on behalf of your employer, client or other entity, you represent and warrant that you have full legal authority to bind your employer, client or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept this Agreement.

 

Agreement

 

6.     This Agreement describes the terms governing your use of the Software by you and the terms governing the use of one or more Kiosk Experiences by you and/or your end-users. It includes by reference:

a.     Additional Terms and Conditions, which may include those from third parties; and

b.    Any terms provided separately to you for a Kiosk Experience in writing (the “Ordering and Activation Terms”), and may include: License Level, License Type, License Term, Activation Terms and Payment Terms.

 

How to Acquire a License

 

7.     You may acquire a License by placing an order with Quantum or its resellers and licensors by email (the “Offer to Purchase”).  After you submit an Offer to Purchase, you will receive an email from us acknowledging that we have received your order (the “Acknowledgement”).  Receipt of an Acknowledgment does not constitute our acceptance of your Offer to Purchase a License.  We will confirm our acceptance of your Offer by sending an email to the email address provided by you (the “Confirmation of Purchase”). The License will be delivered and become activated upon deployment of a physical kiosk containing a Kiosk Experience (the “Deployment”).  Delivery of the License will be made together with the Deployment.  You do not acquire a License unless and until the Deployment occurs. 

 

Grant of License - Software

8.     The Software used to create a Kiosk Experience is protected by copyright, trade secret, and other intellectual property laws. You are only granted certain limited rights to install and use the Software and Quantum Capture reserves all other rights in the Software not granted to you in writing herein. Subject to the terms and conditions contained in this Agreement and upon Deployment, and as long as you meet any applicable payment obligations, Quantum grants you a nonexclusive, nontransferable, non-sublicensable and worldwide right to use the Software. You may use the Software to Create, Modify or Update a Kiosk Experience.

 

Grant of License – Kiosk Experience

 

9.     Subject to the terms and conditions contained in this Agreement and upon a Deployment, and as long as you meet any applicable payment obligations, Quantum grants you a limited, exclusive,

nontransferable, non-sublicensable and worldwide right to use a Kiosk Experience in accordance with the Ordering and Activation terms, provided to you. Notwithstanding the foregoing you may transfer a Kiosk Experience to your End Users in accordance with the terms of the License, provided that such parties shall have no further or additional rights to use the Software and cannot access or extract it from any file you provide. 

Restrictions - Software

10.  You acknowledge and agree that the Software is licensed, not sold. You agree not to use, nor permit any third party to use, the Software in a manner that violates any applicable law, regulation or this Agreement. You agree you will not:

a.     Provide access to or give the Software or any part of the Software to any third party;

b.    Reproduce, duplicate, modify, copy, deconstruct, reverse-engineer, sell, trade or resell the Software;

c.     Sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Software or the rights granted under this Agreement;

d.    Transfer your license to the Software to any other party;

e.     Use the Software as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo without the express prior written consent of Quantum;

f.     Use any of the Software in a fashion that is considered by Quantum in its sole discretion (acting reasonably) to be pornographic, infringing, defamatory or libelous in nature;

g.    Use the Software in a manner that competes with Quantum's business or the business of any of its Resellers or Licensors.

h.     Attempt unauthorized access to any other Quantum systems that are not part of the Software;

i.      Permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, hosting service, or other arrangement; or

j.      Make the Software available on any file-sharing or application hosting service.

 

Restrictions – Kiosk Experience

11.  You acknowledge and agree that a Kiosk Experience is licensed, not sold. You agree not to use, nor permit any third party to use, a Kiosk Experience in a manner that violates any applicable law, regulation or this Agreement. You agree you will not:

a.     Resell, transfer or distribute a Kiosk Experience in any manner other than as expressly permitted herein;

b.    To the extent that source code is contained within a Kiosk Experience, reverse engineer, decompile, or disassemble any part of such source code;

c.     Remove or modify any notice of copyright, trademark or other proprietary right, or any other copyright management information or metadata, from any place where it is on or embedded in a Kiosk Experience;

d.    Use a Kiosk Experience in a manner that infringes upon any third party's trademark or other intellectual property, or would give rise to a claim of deceptive advertising or unfair competition;

 

Prices

 

12.  All prices provided are in United States dollars. If you are placing an order from a different country, your card issuer may convert the charge into your local currency.

 

Term of Agreement

 

13.  This Agreement is effective until it is terminated.  This Agreement may be terminated at any time by Quantum without notice if you fail to comply with any of the terms of this Agreement. Upon termination, your License for the Software and any Kiosk Experience shall automatically terminate and you must immediately:

 

a.     stop using the Software for any purpose whatsoever;

b.    disable any physical kiosk operating any Kiosk Experience;

c.     destroy or delete all copies and archives of any Kiosk Experience or accompanying materials which are in your possession and/or control, which are in the possession and/or control of a third party acting on your direction, and which are in the possession and/or control of a third party not acting on your direction but which any Kiosk Experience may reasonably be brought under your possession and/or control; and

d.    confirm to Quantum in writing that you have complied with these requirements (if requested by Quantum).

 

14.  NOTWITHSTANDING ANYTHING CONTAINED HEREIN TERMINATION OF THIS AGREEMENT BY QUANTUM FOR ANY REASON WHATSOEVER SHALL BE IN ADDITION TO AND SHALL NOT LIMIT OR RESTRICT QUANTUM’S OTHER RIGHTS AT LAW AND/OR EQUITY. OTHER THAN AS EXPRESSLY SET OUT HEREIN, QUANTUM SHALL BE UNDER NO OBLIGATION TO REFUND ANY AMOUNTS PAID BY YOU IN THE EVENT THAT THIS AGREEMENT IS TERMINATED.

 

15.  Upon notice from Quantum, or upon your knowledge that a Kiosk Experience is subject to a threatened, potential or actual claim of infringement of another's right for which Quantum may be liable, you must immediately and at your own expense (i) stop using any Kiosk Experience; (ii) disable any physical kiosk(s) operating any Kiosk Experience; (iii) delete or remove any Kiosk Experience from your premises, computer systems and storage (electronic or physical); and (iv) ensure that any third party acting under your direction does likewise.

 

No Representation or Warranty

 

16.  OTHER THAN AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. QUANTUM DOES NOT REPRESENT OR WARRANT THAT ANY KIOSK EXPEIRENCE CREATED WITH THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD A KIOSK EXPERIENCE PROVE DEFECTIVE, YOU (AND NOT QUANTUM) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS. IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, QUANTUM MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO OWNERSHIP, TECHNICAL OR LEGAL COMPLIANCE, FITNESS FOR USE OR OTHERWISE.

 

17.  Any representation or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law.

 

Waiver of Liability and Indemnity

 

18.  IN NO EVENT SHALL QUANTUM OR ANY OF ITS AFFILIATES AND/OR ASSOCIATED COMPANIES OR ANY  DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, CONTRACTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES WHATSOEVER ARISING OUT OF, UNDER OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT INCLUDING BUT NOT LIMITED TO INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES AND INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER LOSS IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER, OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, MODIFICATION OR EXPLOITATION OF A KIOSK EXPERIENCE, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

 

19.  NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF QUANTUM OR ANY OF ITS AFFILIATES AND/OR ASSOCIATED COMPANIES OR ANY DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, CONTRACTORS, AGENTS, SUCCESSORS OR ASSIGNS UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY QUANTUM FOR PURCHASE OF YOUR LICENSE.   

 

20.  You agree to indemnify, defend and hold Quantum harmless and each of our affiliate and/or associate companies, and all directors, officers, employees, shareholders, agents, contractors, successors or assigns of us and our associate and affiliate companies, from any damages, liabilities, costs and expenses, including all reasonable legal expenses, on account of any claim, action, suit, demand or proceeding made or brought against any such party, or on account of the investigation, defence or settlement thereof, arising in connection with the License and/or use of a Kiosk Experience.

 

Events Outside our Control

 

21.  We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations hereunder or in connection with an order to purchase a License that is caused by one or more events outside our control (individually and collectively an “Event Outside Our Control”) including but not limited to:

 

a.     acts of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods);

b.    war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition, or embargo;

c.     rebellion, revolution, insurrection, or military or usurped power, or civil war;

d.    contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly;

e.     riot, commotion, strikes, go slows, lock outs or disorder;

f.     acts or threats of terrorism;  or

g.    cyberattacks.

 

22.  Notwithstanding anything contained herein, if an Event Outside Our Control takes place that affects the performance of hereunder or in connection with an order to purchase a License:

 

a.     We will make best efforts to notify you of the occurrence of the Event Outside Our Control as soon as reasonably possible; and

 

b.    Such affected obligations will be suspended and the time for performance will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of any Licensed Content to you, we will deliver the Licensed Content to you once the Event Outside Our Control is over.

 

Intellectual Property Rights

 

23.  Notwithstanding your purchase of a License or anything else contained herein, we are and shall at all times remain the exclusive owner of the Software.  No ownership or copyright in or to the Software shall pass to you for any reason whatsoever.

 

24.  Further, Quantum does not make any representation or warranty with respect to the use of names, people, trademarks, trade dress, logos, registered, designs or works of art or architecture depicted in connection with any Kiosk Experience. You shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of a Kiosk Experience and shall be responsible for obtaining such release(s).

 

Assignment

 

25.  This Agreement is personal to you and is not assignable by you without Quantum’s express prior written consent.  Quantum may transfer or assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.

 

General Provisions

 

26.  YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF QUANTUM AGREEING TO PROVIDE THE LICENSE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

 

27.  Quantum’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any term, condition, provision, or right.

 

28.  Any use of a Kiosk Experience in a manner not expressly authorized by this Agreement constitutes copyright infringement, entitling Quantum to exercise all rights and remedies available to it under copyright laws around the world. You shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition to other termination rights hereunder, Quantum reserves the right to terminate this Agreement in the event you enter in to this Agreement after having received notice of unauthorized use from Quantum relating to a Kiosk Experience.

 

29.  If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.  Notwithstanding anything contained herein, the invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability of the balance hereof.

 

30.  You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the License granted to you, or of your use of a Kiosk Experience

 

31.  You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Confirmation of Purchase, or such other address as you may advise us in writing to use, from time to time.

 

32.  This Agreement will be governed by and shall be construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

 

33.  You acknowledge and agree that any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to the exclusive jurisdiction of the courts Canada and/or of the Province of Ontario as applicable.

 

Contact us

 

34.  You may contact us by telephone at 416-675-6600 Monday to Friday (excluding statutory holidays) between the hours of 9:00 am and 6:00 pm EST.  You may also contact us by email any time at: info@quantumcapture.com.

 

THIS KHLA LAST UPDATED: June 27, 2019