April 30, 2008
Welcome to the www.qmania.com website (the “Site”) (we refer to the Site and the services provided through the Site, collectively, as the “Qmania Features”). These Terms of Service (“Terms of Service”) set forth an agreement between you and Qmania, Inc. (“Qmania”) governing your use of the Qmania Features.
By using any of the Qmania Features, or by creating a user account, you signify your irrevocable acceptance of these Terms of Service. You may only use the Qmania Features and/or open an account if your acceptance of these Terms of Service is not prohibited by applicable law. If you are younger than 18 years old, you must get permission from a parent or guardian to open an account and your parent or guardian must agree to these Terms of Service. If you do not agree to these Terms of Service, then you are not authorized to use any of the Qmania Features.
Qmania has the right to modify or update these Terms of Service at any time without providing notice. Any additional or different terms in these Terms of Service shall be effective upon being posted on the Site. Your continued use of any of the Qmania Features following the posting of any additional or different terms in these Terms of Service constitutes your irrevocable acceptance of those additional or different terms.
Qmania reserves the right to add, change, modify, suspend or discontinue all or any of the Qmania Features, in its sole discretion, at any time. Unless expressly stated otherwise, the use of any new Qmania Features, including the availability of new services or products through the Site, shall be subject to these Terms of Service. In addition, Qmania may also impose limits on any of the Qmania Features or restrict your access to portions of or the entire Site in its sole discretion without notice or liability. Qmania reserves the right to refuse to provide you with access to any of the Qmania Features or to refuse to allow you to create a user account for any reason.
You acknowledge and agree that Qmania, and its licensors, retain all right, title and interest in and to all data and information (excluding data and information that you provide), content and materials provided on the Site (including, without limitation, text, images, graphics, page headers, Qmania’s trademark and logo, the selection and arrangement of elements displayed on the Site, the compilation of all content and materials on the Site and the business process, procedures, methods and techniques used in the Qmania Features) and all associated patent rights, copyright rights, trademark rights, trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world (“Intellectual Property”).
Qmania grants you a limited license to access and use the Qmania Features for your personal use subject to all of the terms and conditions of these Terms of Service periodically. You may not (i) remove any trademarks, copyright notices or any other notice contained in any content, materials or individual element provided on the Site, (ii) reproduce, download (other than page caching), modify, publish, distribute, transmit, disseminate, broadcast, transfer, license, sell, rent, lease, adapt, create derivative works of, link to, publicly display or perform, or in any way exploit any content, materials or individual element provided on the Site without Qmania’s prior written consent, (iii) except as set forth in any other agreement regarding the Qmania Features between you and Qmania, make any commercial use or any derivative use of any of the Qmania Features or any of the content, materials or individual element provided on the Site, (iv) frame or utilize framing techniques to enclose any content, materials or individual element provided on the Site or create a link to the Site accessing such content, materials or element without Qmania’s prior written consent, (v) use any circumvention tools or any metatags or other hidden text utilizing Qmania’s name, trademark, URL or the name of any of the Qmania Features without Qmania’s prior written consent, or (vi) disassemble, decompile or reverse engineer any of the materials or underlying software made available on or through the Site or used to provide any of the Qmania Features.
Certain Qmania Features may provide you with coupons or offers with participating Qmania affiliated merchants (“Special Offers”). You are solely responsible for redeeming such coupons or offers. There is no automatic or periodic redemption. Qmania is not responsible for changes to, or discontinuance of any Special Offers, for any Qmania affiliated merchants withdrawal from the Site, or any effect such withdrawal may have on the Qmania Features.
Qmania provides the Special Offers as a service to its customers. Qmania is not responsible for the redemption, errors/omissions or expiration of Special Offers and it is your responsibility to make sure that a Special Offer is valid with a Qmania affiliated merchant. All offers and promotions on this Site are subject to change without notice. Qmania has no control over the legality of any coupons or other offers made by Qmania affiliate merchants, the ability of any of the Qmania affiliate merchants to complete the sales in accordance with the offers, or the quality of the goods offered by the Qmania affiliate merchants. Qmania has no control over whether Qmania affiliate merchants will honor the Special Offers provided on the Site, and does not guarantee the accuracy or completeness of the information contained on the Site. In the event you have a dispute with an Qmania affiliate merchant in any way relating to the Site or the use of information from the Site, you agree to waive and release Qmania from any and all claims, demands, actions, damages (actual and consequential), losses, costs or expenses of every kind and nature, known and unknown, disclosed and undisclosed relating to that dispute.
Accounts and Security
To use certain Qmania Features, you will be directed to register with the Site and create a user account or otherwise provide Qmania with certain information about yourself and your company (if applicable). By submitting your information through the Site, you grant Qmania a perpetual, irrevocable, royalty-free, non-exclusive license to use, reproduce, transmit, and display this information in connection with Qmania’s operation of the Site and/or performance of the Qmania Features for you. As part of the registration process, you will be asked to submit your name, email address, mailing address, user name, phone number and to select a password. You agree that all information you provide to Qmania for purposes of creating an account (“Registration Information”) will be true, accurate, current and complete and your failure to provide such information shall constitute a breach of these Terms of Service and may result in the immediate termination of your account. You shall (i) promptly update your Registration Information to keep it true, accurate, current and complete, (ii) maintain the confidentiality of your password, and (iii) properly exit from your account at the end of each session.
You shall not (a) select or use the email address or user name of another person with the intent to impersonate that person, (b) use a name subject to the rights of any other person without authorization, (c) use an email address or user name that is profane, offensive or otherwise inappropriate or (d) allow any other party to use your account and/or password.
You may incur charges to your mobile phone account, including text messaging or data plan rates, in connection with your redemption of the Special Offers or your use of certain Qmania Features, and agree that you are solely responsible for such charges. Qmania is not responsible for any third party charges arising from your use of any of the Qmania Features.
You agree to immediately notify Qmania of any known or suspected unauthorized use(s) of your account or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your password. You understand and agree that you shall be liable for all activities that occur under any account created for your use, even if such activities were not committed by you. Qmania is not responsible for any loss or damage arising from your failure to maintain the confidentiality of your password.
Use of the Qmania Features
You shall comply with all applicable laws, statutes, ordinances and regulations in your use of the Qmania Features. Qmania may immediately terminate your account, or suspend your access to your account, in its sole discretion and without notice, for conduct that Qmania believes is: (i) illegal, fraudulent, harassing or abusive, (ii) a violation of these Terms of Service or any other policies or guidelines posted on the Site, or (iii) harmful to other users, third parties, or Qmania’s business. Use of an account for illegal, fraudulent or abusive purposes may be referred to law enforcement authorities without notice. In addition, Qmania may terminate your account if you file a claim against Qmania, or a claim which in any way involves Qmania. Upon Qmania’s termination of your account for any of the forgoing reasons, (a) you may not establish a new account for a period of 1 year from the date of termination, (b) Qmania will have no obligation to notify any third parties regarding such termination, and (c) you will be responsible for any damages that may result or arise out of termination of your account.
You understand that all data, information, text, images, software, sound, photographs, graphics, video, messages, tags, or other materials (“Content”), whether publicly posted or privately transmitted, on the Site or through the use of any of the Qmania Features, are the sole responsibility of the person posting or transmitting such Content. You, and not Qmania, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available on the Site or through the use of any of the Qmania Features. Qmania does not control the Content posted on the Site or transmitted through the use of any of the Qmania Features and, as such, does not guarantee the accuracy, reliability or quality of such Content. Further, you acknowledge that Qmania may or may not pre-screen Content that is displayed on the Site or transmitted through the use of any of the Qmania Features. You understand that by visiting the Site or using any of the Qmania Features, you may be exposed to Content that you may consider to be offensive, indecent or objectionable. Under no circumstances will Qmania be liable in any way for any user-generated Content including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available on the Site or through the use of any of the Qmania Features. You agree that Qmania may, in its sole discretion, refuse to post, store or transmit any Content submitted by you and may move, remove, edit or modify any such Content for any reason at any time.
You agree not to:
upload, post, email, transmit, display on the Site or make available through the use of any of the Qmania Features (a) any Content that is fraudulent, misleading, inaccurate, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, profane, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, including any communication that constitutes (or encourages conduct that would constitute) a criminal offense, gives rise to civil liability or otherwise violates any local, state, national or international law, regulation or standard of conduct, (b) any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), (c) any Content that infringes, violates, or misappropriates any patent, trademark, trade secret, copyright, privacy, publicity or other rights of any other person or entity, (d) any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, or (e) any material that contains any virus, Trojan horse, worm, time bomb or any other computer code, files or programs designed to damage, interfere with, intercept, misappropriate, gain control over or limit the functionality of any computer, computer network, communications device, communications system, data or personal information;
use any of the Qmania Features to (1) harm minors in any way, (2) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity, (3) for any commercial purpose or the benefit of any third party or any manner not permitted by these Terms of Service, (4) intentionally or unintentionally violate any applicable local, state, national or international law including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law, (5) provide material support or resources (or conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act, or (6) stalk or otherwise harass another;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content displayed on the Site or transmitted through the use of any of the Qmania Features;
remove any proprietary notices from the Site;
cause, permit or authorize the modification, creation of derivative works, or translation of any Content displayed on the Site or transmitted through the use of any of the Qmania Features without Qmania’s prior written consent;
attempt to hack the Site, or to defeat or overcome any encryption technology or security measures implemented by Qmania with respect any of the Qmania Features and/or data transmitted, processed or stored by Qmania;
attempt to harvest or collect any information about or regarding other users of any of the Qmania Features including, but not limited , any personal data or information; and/or
interfere with or disrupt any of the Qmania Features or servers or networks connected to or operated with any of the Qmania Features, or disobey any requirements, procedures, policies or regulations of networks connected to or operated with any of the Qmania Features.
You acknowledge, consent and agree that Qmania may access, preserve and disclose account information and/or Content that you provide if Qmania is required to do so by law or if it believes in good faith that such access, preservation or disclosure is reasonably necessary to (A) comply with legal process, (B) enforce these Terms of Service, (C) respond to claims that any Content violates the rights of any third parties, (D) respond to your requests for customer service, or (E) protect the rights, property or personal safety of Qmania, its employees, partners, agents or members of the public.
By displaying Content on the Site or transmitting Content through the use of any of the Qmania Features, you grant Qmania a perpetual, irrevocable, royalty-free, non-exclusive license to use, reproduce, distribute, transmit, adapt, display and publicly perform such Content in connection with Qmania’s operation of the Site and/or performance of the Qmania Features for you.
Links to Other Websites
The Site contains links to other Internet websites and resources. Qmania provides these links merely as a convenience and the inclusion of any link does not constitute or imply any affiliation, endorsement or sponsorship by Qmania of such websites or any content contained therein. You acknowledge and agree that Qmania is not responsible or liable in any way for any content, advertising, services or goods on or made available from such websites or resources.
You understand that the processing and transmission of communications relating to the use of any of the Qmania Features may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting to various networks or devices. Therefore, you agree that Qmania will not be responsible or liable for the timeliness, deletion, mis-delivery or failure to store any data, information or content that you provide for display on the Site or for transmission through the use of any of the Qmania Features.
THE SITE AND THE QMANIA FEATURES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, QMANIA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, NO WARRANTIES SHALL BE IMPLIED BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE.
Qmania makes no representation or warranty that (i) the Site or the Qmania Features will meet your expectations or requirements, (ii) the Site or the Qmania Features will be available, uninterrupted, timely, secure, accurate, complete or error-free, (iii) any results or information that may be obtained from the use of the Site or the Qmania Features will be accurate, timely, complete or reliable, (iv) any errors or defects in the Site or the Qmania Features will be corrected, or (v) the Site and the Qmania Features and/or the server that makes the Site and the Qmania Features available are free of viruses, clocks, timers, counters, worms, software locks, Trojan horses, trap doors, time bombs or any other harmful codes, instructions, programs or components. Operation of the Site and the Qmania Features may be interfered with by numerous factors outside of Qmania’s control including, but not limited to, telecommunications network disruptions. Qmania is not responsible and will have no liability for any failures of the Internet or any data or telecommunications equipment, system or network used in connection with the Site or the Qmania Features.
You acknowledge that the entire risk arising out of the use or performance of the Site or any of the Qmania Features remains with you to the maximum extent permitted by law.
Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SITE OR ANY OF THE QMANIA FEATURES IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE USE OF THE SITE AND THE QMANIA FEATURES.
Limitation of Liability
IN NO EVENT SHALL QMANIA OR ITS LICENSORS, TOGETHER WITH THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OF SERVICE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, FOR (I) ANY LOST OR CORRUPTED DATA, LOST PROFITS, LOSS OR DAMAGE TO ANY COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF QMANIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, QMANIA’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
Some jurisdictions do not allow the exclusion of incidental or consequential damages or limitation of liability, so the above exclusions and limitations may not apply to you.
You agree that Qmania, in its sole discretion and without notice or liability to you, may terminate your use of, or access to, the Site or any of the Qmania Features at any time if Qmania believes in good faith that you have violated or acted inconsistently with these Terms of Service or any applicable law, rule or regulation or that you have engaged in conduct that Qmania determines to be inappropriate or unacceptable.
You agree to defend, indemnify and hold Qmania and its licensors and marketing partners, together with their respective employees, agents, directors, officers and shareholders, harmless from and against any and all claims, actions, proceedings and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees and costs) arising out of (i) your use or misuse of the Site or any of the Qmania Features, (ii) your breach or alleged breach of these Terms of Service, (iii) your violation or of any law, rule, regulation or rights of others in connection with your use of the Site or any of the Qmania Features or (iv) your use or disclosure of another person’s personal, financial or credit information.
Qmania respects the intellectual property rights of others and we ask our users to do the same. If you believe a user of the Site is infringing your copyright, please notify Qmania in accordance with the following procedure:
All notifications of copyright infringement must be in writing and directed to Qmania’s designated agent at the following address, fax number or email address:
130 Pine Avenue # 200
Long Beach, California 90802
Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single website are covered by a single notification, a representative list of such works at that website, (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit Qmania to locate the material, (iv) information reasonably sufficient to permit Qmania to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted; (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
These Terms of Service, and any other agreement regarding the Qmania Features between you and Qmania, constitute the entire agreement between you and Qmania with respect to your access and use of the Site and the Qmania Features and supersede all prior and contemporaneous agreements between you and Qmania. If any of the provisions of these Terms of Service is found by a court of competent jurisdiction to be invalid or unenforceable, then that provision will be construed in a manner consistent with applicable laws to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions shall remain in full force and effect. Qmania’s failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. The laws applicable to the interpretation of these Terms of Service shall be the laws of the State of California, and applicable federal law, without regard to any conflicts of law provisions. You agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Los Angeles County. You also agree that, in the event any dispute or claim arises out of or relating to your use of the Site or the Qmania Features, that you and Qmania will attempt in good faith to negotiate a written resolution of the matter directly between the parties. You agree that if the matter remains unresolved for forty-five (45) days after notification (via certified mail or personal delivery) that a dispute exists, all parties shall join in mediation services in Los Angeles, California with a mutually agreed mediator in any attempt to resolve the dispute. Should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorney's fees, even if you would otherwise be entitled to them.
If you have any questions about these Terms of Service or your rights or Qmania’s obligations relating to any of the Qmania Features, please email us at BetterQmania@qmania.com or you may contact us by mail at:
130 Pine Avenue # 200
Long Beach, California 90802
If you are unable to resolve a complaint you may have regarding the services provided through the Site, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite North 112, Sacramento, California 95834, or by telephone at (800) 952-5210.