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Qik Terms of Service – Supplement for Commercial Use

This Supplement (this “Supplement”) to the Qik, Inc. Terms of Service (the “TOS”) governs the terms and conditions of your Commercial Use (as defined below) of the Website and Service.  Capitalized terms used without definition in this Supplement have the meanings given to them in the TOS.  In the event of any conflict between this Supplement and the TOS, this Supplement shall control.    

 

This Supplement is made between you and Qik.  However, if you have registered as or on behalf of an entity, such as a corporation, partnership, limited liability company or other entity "you" refers to the entity, and you represent and warrant that you have power and authority to enter into this Supplement on behalf of the entity.  

 

Your Acceptance

 

By accepting this Supplement and/or by making Commercial Use of the Website or any of the Qik Services, you signify that you have read, understand and agree to be bound by this Supplement (and the applicable terms of the TOS).  We reserve the right, at our sole discretion, to change, modify, add, or delete portions of this Supplement (and/or the TOS) at any time without further notice. If we do this, we will post the changed Supplement (and/or TOS) and indicate the effective date of the changes.  Your continued Commercial Use of the Website and/or Service after any such changes constitutes your acceptance of the changes. If you do not agree to abide by these or any future Supplement (and/or applicable terms of the TOS), please do not make Commercial Use of the Website or the Service. It is your responsibility to regularly review this Supplement.

 

Commercial Use

 

As used in this Supplement, “Commercial Use” of the Website and/or Service means:

(a) Use of Qik software and/or services on Qik-compatible mobile handsets and other end-user equipment to create audio/video Content as part of any commercial activity; and/or

 

(b) Use, reproduction, distribution, preparation of derivative works, display and performance on your own website(s) supported by paid advertising, sponsorship, membership fees or the like of visual and navigational functionality of Qik audio/video players, with the Content you create using the Service.

 

Supplemental Terms to TOS

 

In addition to clause A(i) of the paragraph of the TOS entitled “Website and Service Access,” your use of the Service as permitted also is for your Commercial Use, as long as this Supplement is in effect and you comply with the TOS and this Supplement.

 

In addition to clause F of the paragraph of the TOS entitled “User Submissions,” Qik permits you to link to materials on the Qik Website and the Service only for your Commercial Use under this Supplement. In addition, Qik provides an "Embeddable Flash Player" feature, which you may incorporate into your own website(s) for Commercial Use.

 

In addition to the paragraph of the TOS entitled “Member Conduct,” you understand that the Website and the Service also are available for your Commercial Use under this Supplement.

 

Fees for Commercial Use

 

Our fees for Commercial Use permitted by this Supplement are stated on our pricing page in effect from time to time. Such fees will be billed monthly in advance or as otherwise described on the Pricing Page, and are payable by charging your credit card on file, or another payment method listed on the pricing page. ALL SUCH FEES ARE NON-REFUNDABLE AND ALL SALES ARE FINAL.  

 

All fees will be exclusive of value added ("VAT"), sales or other taxes and duties (except taxes on our income or profits), and you shall promptly reimburse us for the same.  If you pay any withholding taxes that are required to be paid under applicable law, you will furnish us with written documentation of all such tax payments, including receipts.  If you fail to timely pay any amount due under this Supplement, you, upon demand, shall pay, in addition, interest at the rate of 1-1/2% per month, but not to exceed the maximum allowed by law, on such delinquent amount from the due date thereof until the date of payment.  You shall reimburse us for any and all expenses that we may incur (including interest, attorneys’ fees and any expenses) in connection with our efforts to collect any amounts due to us hereunder.  

 

We reserve the right to suspend or terminate your account and/or your use of the Website or Service without notice upon card expiration, rejection of any card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to us.

 

Customers may from time to time be given the option to use certain versions or editions of the Website and/or Service at no charge for a free trial period described on the Website (the "Free Trial Period"). We provide the Free Trial Period as an accommodation to you, and reserve the right to terminate your Free Trial Period at any time, for any reason or no reason, without notice.     

 

Term and Termination of this Supplement

 

This Supplement will commence on your acceptance and automatically renew for successive one-month or one year term, unless either party provides written notice of non-renewal at least thirty (30) days prior to the expiration of the current term or unless terminated earlier under this Supplement or the TOS.

 

Either party may terminate this Supplement if the other party breaches any material term of this Supplement or the TOS and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching party or if the TOS is terminated with respect to Customer.

 

Upon the expiration or any termination of this Supplement, you immediately shall cease all Commercial Use of the Website and Service, return or destroy any related Qik software and documents in your possession, and without limiting any other rights or remedies of the parties, pay us the fees that are unpaid prior to the date of termination.

 

LIMITATION OF LIABILITY

 

THE WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY IN THE TOS ARE INCORPORATED INTO THIS SUPPLEMENT BY REFERENCE.

 

NOTWITHSTANDING THE PARAGRAPH OF THE TOS ENTITLED “LIMITATION OF LIABILITY,” WITH RESPECT TO THIS SUPPLEMENT ONLY, OUR LIABILITY FOR DIRECT DAMAGES IS LIMITED TO SIX (6) MONTHS OF SERVICE FEES, AND IS OTHERWISE SUBJECT TO THE OTHER LIMITATIONS AND EXCLUSIONS IN SUCH PARAGRAPH.

 

Miscellaneous

 

You acknowledge that all or portions of the Website and/or Service may be subject to the export control laws of the United States and/or other jurisdictions of the world. You agree not to export, re-export or otherwise transfer any portion of the Website and/or Service in violation of any applicable export law or regulation. Any Qik software and the documentation which accompanies the same are "Commercial Items," as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government as end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Qik, Inc., 811 Hamilton Street, Redwood City, CA 94063.