QEA TECH TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE. YOUR USE OF THE SERVICE IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THESE TERMS AND CONDITIONS.
These Terms and Conditions (the “Terms and Conditions”) is a legal agreement between you and QEA Tech (“QEA Tech”) and states the terms and conditions under which you may access and use the Service. By accessing and using the Service, you are indicating your acceptance of, and agreement to be legally bound by, these Terms and Conditions.
QEA Tech may, in its sole and absolute discretion and for any reason, modify, supplement or amend these Terms and Conditions, without any notice or liability to you or any other person, by posting the revised Terms and Conditions on qeatech.com (the “Website”).
In addition to the terms defined elsewhere in these Terms and Conditions, the following terms have the following meanings:
1.1. “Building Envelope Health Report” means a report prepared by QEA Tech which provides information regarding building envelopes and which is accessible to Participants on the Portal.
1.2. “Facility” means the physical building and the surrounding proximate locality in respect of which a Participant has requested the Service.
1.3. “Intellectual Property” means all:
(a) trade-marks, design marks, logos, service marks, certification marks, official marks, trade names, business names, corporate names, trade dress, distinguishing guises, slogans, meta tags, and other characters, brand elements or other distinguishing features used in association with wares or services, whether or not registered or the subject of an application for registration and whether or not registrable, and associated goodwill;
(b) inventions, processes, machines, articles of manufacture, compositions of matter, business methods, formula, developments and improvements, whether or not patented or the subject of an application for patent and whether or not patentable, methods and processes for making any of them, and related documentation (whether in written or electronic form) and know-how;
(c) software in source code or object code form, documentation, pictorial works, graphic works, audio visual works, performances, sound recordings and signals, including their content, and any compilations of any of them, whether or not registered or the subject of an application for registration and whether or not registrable;
(d) domain names, whether registered primary domain names or secondary or other higher level domain names;
(e) industrial designs and all variants of industrial designs, whether or not registered or the subject of an application for registration and whether or not registrable;
(f) trade secrets, technical expertise, and research data and other confidential information relating to goods and services;
(g) all drawings, manufacturing and engineering information and specifications, lab journals, notebooks, databases, research and development reports, pricing and costing information, business and marketing plans and request for proposals (and similar proposals), blueprints, designs, patterns, flow charts, scripts, specifications, sketches and formulas; and
(h) all associated rights, including moral rights,
in respect of, based upon or in any way relating to the Service, the Website (including the Portal) or any Building Envelope Health Report prepared in connection therewith.
1.4. “Participant” or “you” means a person who has requested the Service and paid for one or more Building Envelope Health Reports and who holds a subscription to access and use the Portal.
1.5. “Personal Information” means information relating to an identifiable individual.
1.6. “Portal” means the cloud-based subscription service offered by QEA Tech via the Website.
1.7. “Representatives” means a Participant’s employees, agents, consultants, advisors and other representatives, including lawyers, accountants, auditors and financial advisors, any of which may reasonably be expected to visit or otherwise access the subject Facility during normal business hours by reason of their employment or provision of services to the Participant.
1.8. “QEA Tech Limited Warranty” means the warranty in Section 7.
1.9. “Service” means the thermography, quantification and energy audit service provided by QEA Tech, including, without limitation, the preparation of Building Envelope Health Reports.
1.10. “Service Disclaimer” means the disclaimer in Section 8.
2. REPRESENTATIONS AND WARRANTIES OF PARTICIPANT
By requesting a Building Envelope Health Report and otherwise accessing or using the Service, you hereby represent and warrant to QEA Tech as follows:
2.1. You have obtained the consent, permit, approval or waiver to the collection, storage, use, and/or disclosure of Personal Information of any individuals whose Personal Information may reasonably be collected, stored, used, disclosed or otherwise implicated in connection with or by reason of the Service.
2.2. The performance of the Service by QEA Tech, including, without limitation, the capturing of visual and thermal images of the Facility by QEA Tech as mutually agreed upon by you and QEA Tech, will not result in a violation or be in conflict with or constitute, with or without the passage of time and giving of notice, a event that results in any claim, suit, action or other proceeding commenced or initiated by your Representatives, or any other individual residing at or otherwise occupying the Facility as a resident, tenant, subtenant or other similar capacity (collectively, “Residents”), in respect of or based upon a violation of any applicable laws relating to privacy and data security.
2.3. You have full power and authority to enter into these Terms and Conditions and neither the performance of the Service by QEA Tech, nor the conduct of QEA Tech in furtherance thereof, including, without limitation, the capturing of visual and thermal images of the Facility by QEA Tech, will conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, any contract, covenant or instrument under which you are party to with any Representative or Residents.
2.4. Unless otherwise agreed in writing by QEA Tech, you may not at any sell, transfer, assign or other dispose of the Building Envelope Health Report or the Intellectual Property contained therein to any third party or do or caused to be done any act with respect to the Intellectual Property which could in any way, directly or indirectly, impair the rights, title and interest of QEA Tech in and to the Intellectual Property.
2.5. Unless otherwise agreed in writing by QEA Tech, you will not use the Building Envelope Health Report or the Intellectual Property contained therein for any other purpose or in any manner than as expressly provided herein, nor attempt to directly or indirectly dissemble, decompile, modify, make derivative works of, reverse engineer or otherwise attempt to discover the source code or underlying techniques or algorithms of the Intellectual Property by any means whatsoever.
3. REPRESENTATIONS AND WARRANTIES OF QEA TECH
In performing the Service, QEA Tech hereby represents and warrants to each Participant as follows:
3.1. It will only collect, store, use and/or disclose Personal Information by clear, fair and lawful means and at all times in compliance with applicable laws relating to privacy and data security.
3.2. It will not disclose, use or divulge Personal Information to any third party for any reason except as reasonably necessary in connection with the performance of the Service.
3.3. The Personal Information collected by QEA Tech will only be used in connection with the performance of the Service, including, without limitation, using aggregated data (not individual data) for purposes of performing statistical analyses in order to improve the Service.
3.4. It will implement reasonable physical, technical and administrative security measures and policies designed to protect all Personal Information controlled by it from and against unlawful, accidental or unauthorized access, destruction, loss, use, modification and/or disclosure.
4. INTELLECTUAL PROPERTY
4.1. All rights, title and privilege in and to the Intellectual Property remains the exclusive property of QEA Tech an any and all rights not expressly granted hereunder are reserved. Without limiting the generality of the foregoing, all visual and thermal images, text, graphics, content, video, audio and data compilations collected in the course of performing the Service or published in any Building Envelope Thermal Reports are the exclusive property of QEA Tech, and are protected under Canadian and international copyright laws.
4.2. Subject to these Terms and Conditions, QEA Tech grants to you a non-assignable, royalty-free, non-exclusive license to use the Intellectual Property solely in connection with the Service until such time as the Service is terminated or cancelled.
You hereby agree to indemnify and save harmless QEA Tech and its directors, officers, employees and other representatives from and against any claim, cause of action or demand, including, without limitation, reasonable legal, accounting and other professional fees, brought as a result of your use of your use of the Service or the Building Envelope Health Report in violation of these Terms and Conditions.
6. QEA TECH LIMITED WARRANTY
The original software developer warranty, if any, will apply to the Intellectual Property. The foregoing warranty does not cover or otherwise apply to intellectual property not developed by QEA Tech and does not apply to goods and services altered or repaired by any third parties, nor will QEA Tech reimburse any Participant for any such alteration or repair.
7. SERVICE DISCLAIMER
Except as explicitly provided in these Terms and Conditions, QEA Tech make no representations or warranties of any kind, express or implied, regarding the Service, the Website (including the Portal), any Building Envelope Health Report or the Intellectual Property, all of which are provided on an “as is” and “as available” basis. QEA Tech does not warrant the accuracy, completeness, currency, reliability or suitability of the operation of the Service, the Website or the Portal, or any of the content, data or Intellectual Property found in any Building Envelope Health Report, and expressly disclaim all warranties and conditions in respect of any of the foregoing, including implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement, and those arising by statute or otherwise in law or from a course of dealing or usage of trade.
8.1. The Building Envelope Health Report is provided to inform the practice of applying the building envelope thermal analysis methodology for determining the effective thermal performance of building envelope assembly and interface details, as well as to estimate heat loss. The information contained in the Building Envelope Health Report reflects QEA Tech’s best judgment based visual inspection of the subject Facility and in the light of the information available at the time of preparation of the report. The greatest care has been taken to confirm the accuracy of the information contained herein, however, there is no guarantee of energy savings, expressed or implied. All savings estimates are based on engineering calculations and best practices. QEA Tech assume no liability for the amount of poor insulation, inadequate installation and air-leakage that may be discovered in building envelop and energy modeling practices as result of the use of or reliance upon any Building Envelope Health Report. Nothing in Building Envelope Health Report is an endorsement of any proprietary building envelope system or particular assembly building material. Participants are encouraged to retain consultants with appropriate architectural and/or engineering qualifications and speak with appropriate municipal and other authorities with respect to issues of envelope renovation, design, assembly fabrication and construction practices and/or consult applicable up-to-date technical publications on building envelope science, practices, and products. Participants are also advised to seek specific information on the use of envelope-related products and consult the instructions of envelope assembly manufacturers.
8.2. Sections 6, 7 and 8 will survive the termination or cancellation of the Service.
8.3. You consent and submit to the exclusive jurisdiction of the courts located in the City of Markham, in the Province of Ontario, in all disputes arising out of or relating to these Terms and Conditions.
8.4. These Terms and Conditions will be severable. In the event that any provision is determined to be unenforceable or invalid, that provision will nonetheless be enforced to the fullest extent permitted by applicable law, and that determination will not affect the validity and enforceability of any other remaining provisions of these Terms and Conditions.
8.5. These Terms and Conditions shall ensure to the benefit of and be binding upon the respective successors and permitted assigns of the parties. You may not assign any rights or obligations under these Terms and Conditions without the prior written approval of QEA Tech. QEA Tech may, in its sole and absolute discretion, assign these Terms and Conditions and its rights and obligations hereunder.
8.6. The headings used in these Terms and Conditions are included for convenience only and will not limit or otherwise affect these Terms and Conditions.
8.7. These Terms and Conditions, together with those incorporated or referred to in these Terms and Conditions, constitute the entire agreement between you and QEA Tech pertaining to the subject matter of these Terms and Conditions, and supersede any prior agreements, understandings, negotiations and discussions, whether electronic, oral or written, regarding the subject matter of these Terms and Conditions, and may not be amended or modified except by the Company as set out above. There are no representations, warranties or other agreements between us, express or implied, connection with the subject matter of these Terms and Conditions, except as specifically set out in these Terms and Conditions or in those incorporated or referred to in these Terms and Conditions. No party has been induced to enter into these Term and Conditions in reliance on, and there will be no liability assessed, either in tort or contract, with respect to, any warranty, representation, opinion, advice or assertion of fact, except to the extent it has been reduced to writing and included in these Terms and Conditions or in those incorporated or referred to in these Terms and Conditions.