1.     SCOPE OF APPLICATION

1.1           These General Terms and Conditions (“Terms”) govern the provision of Services (as defined below) and delivery of Supplies (as defined below) by Managed by Q Inc. (“Managed by Q”) to the customer named in the Order (as defined below) (“Customer”) and all transactions incidental thereto.  By accepting the Services and Supplies rendered and/or delivered by Managed by Q, Customer shall be deemed to have accepted these Terms.  The policies of Managed by Q are accessible at https://www.managedbyq.com/policies

Supplies” means the office and cleaning supplies set forth in the applicable Agreement to be delivered by Managed by Q to Customer.

2.     SERVICES AND SUPPLIES.

2.1           Offers.  Unless otherwise specified in any offer, all offers made by Managed by Q are binding on Managed by Q for thirty (30) days.  In the event of Customer’s modification of the terms of Managed by Q’s offer, Managed by Q shall be free to accept or reject such modification without any further obligation to Customer whatsoever.

No Agreement shall exist between Managed by Q and Customer, and Managed by Q shall have no obligations to Customer until an Order shall have been accepted in writing (including electronically) by Managed by Q.

2.2           Agreement.  The terms and conditions of the confirmed Order and those set forth in these Terms taken together shall constitute the entire agreement between Managed by Q and Customer regarding the provision of Services and delivery of Services and/or Supplies to such Customer (collectively, the “Agreement”).

2.3           Performance of Services.  Managed by Q will perform the Services specified in the Agreement in accordance with these Terms and the terms in the applicable Agreement.  Managed by Q is entitled to engage affiliates and other third parties to provide the Services, provided there is notice to Customer and Customer’s consent.

2.4           Selection of Personnel. Managed by Q shall have the sole discretion to select the personnel and, with Customer’s consent, third party vendor to be assigned to perform the Services for Customer.  Managed by Q may, in its sole discretion, replace such personnel as Managed by Q deems necessary or advisable.

2.5           Delivery of Supplies.  Unless otherwise agreed in writing by the parties, the performance of Services and delivery of Supplies, as may be applicable, shall be made to the address set forth in the Agreement and title to and risk of loss for the Supplies shall pass to Customer upon delivery thereof to Customer.

2.6           Time of Performance or Delivery of Supplies.  Any delivery times or dates communicated by or on behalf of Managed by Q are estimates and shall not be binding on Managed by Q.  In no event shall Managed by Q be liable for any delay in delivery, and no delay in delivery of any Products shall relieve Customer of its obligation to accept delivery thereof and make payment of any amounts due in accordance with these Terms.  Customer’s failure to accept the performance of any Service or delivery of any Supply pursuant to an Agreement shall not release or excuse Customer from its obligation to timely pay all amounts due in connection with such Agreement.  If Customer rejects or revokes acceptance of the Supplies or Services or fails to pay any amounts when due, Managed by Q, in its sole and absolute discretion, may extend the period of delivery by such period as Managed by Q may deem reasonable, or withhold or cancel delivery of any Supplies or performance of any Service, or cancel any or all Agreements without any further obligations to Customer whatsoever.

2.7           Changes to the Agreement.  Subject to the limitations set forth in the Policies, Customer may submit to Managed by Q written requests (including electronically) to change the scope of Services or delivery of Supplies or time of delivery of the Supplies or performance of Services described in the applicable Agreement (each such request, an “Amendment Request”).  Managed by Q may, at its sole discretion, consider such Amendment Requests, provided that Managed by Q will have no obligation to perform any Amendment Request unless and until Managed by Q has agreed in writing (including electronically) to adopt such Amendment Request. If Managed by Q elects to consider such Amendment Request, then Managed by Q shall promptly notify Customer of any adjustment to the applicable Fees or amendments to the respective Agreement.  In such event, Managed by Q and Customer shall negotiate in good faith a reasonable and equitable adjustment to the Fees or any amendment to the scope of Services or delivery of Supplies, and Managed by Q will continue to perform the Services and/or deliver the Supplies that are not affected by such Amendment Request pursuant to the applicable Agreement.  Customer may cancel Services and/or Supplies at any time by providing thirty (30) days advance notice.  This thirty-day notice period will be waived if Customer orders replacement Services of the same or greater value through the Managed By Q Marketplace.  Additional details regarding Managed by Q’s cancellation policy are set forth in the Policies, as may be amended by Managed by Q from time to time, and these shall apply.

2.8           Customer Responsibilities.  In connection with these Terms and each applicable Agreement, Customer shall: (i) provide Managed by Q with full access to Customer’s premises and provide the necessary number of keys, fobs, access cards, access codes, security codes, alarm codes or other means of access, necessary authorization as well as access instructions, including preferred access points, as required by Management Q or its third party vendor, for the sole purpose of the performance of the Services and delivery of the Supplies, as may be applicable; (ii) provide Managed by Q or its third party vendor a sample Certificate of Insurance within three (3) business days of the date of the Order in the event the Customer or its landlord requires such Certificate of Insurance from Managed by Q or its third party vendor; (iii) obtain the necessary permits or permissions required for Managed by Q or its third party vendor to provide the Services or deliver the Supplies; (iv) agrees not to impair the proper operation, misuse, cause any type of damage to, copy, distribute, reverse engineer, rent or resell the Online Platform or any content therein, (v) provide proof of identity or other documents as reasonably requested by Managed by Q and (vi) use an access point or data account at Managed by Q’s platform which is authorized by Managed by Q in advance; and (vii) perform Customer’s duties and tasks set forth in the applicable Agreement, and such other duties and tasks as may be reasonably required to permit Managed by Q or its third party vendors to perform the Services and/or deliver the Supplies.

2.9           Relationship of the Parties.  The parties are independent contractors and nothing in an Agreement or these Terms shall be construed as constituting a joint venture, common undertaking or other association between the parties.  Neither party shall be deemed to be an employee, agent, partner nor legal representative of the other party for any purpose, and neither party shall have any right, power or authority to create an obligation or responsibility on behalf of the other party, or to make any representation or warranty on behalf of such party, except as set forth in the respective Agreement.

3.     PAYMENT.

3.1           Fees and Expenses.  In consideration of Managed by Q’s provision of the Services and/or delivery of Supplies and the rights granted to Customer under these Terms and any applicable Agreement, Customer shall pay Managed by Q all fees including, but not limited to, service fees, subscription fee for the Supplies and other compensation set forth in the applicable Agreement (“Fees”).

3.2           Payment Terms.  Depending on the type of Service and Supply, the Customer shall be billed as follows:

3.2.1.   Q Services Cleaning

Management Q shall issue an invoice to the Customer on a monthly basis for the cleaning Services actually rendered during the prior month setting forth the total amount of the Fees based on the hourly rate agreed to in the applicable Agreement. The Fee shall be increased by 50% for Services rendered on days on which banking institutions in the State of New York are authorized or obligated by law or executive order to close (“Holidays”) Managed by Q shall charge the Customer’s credit card provided at the time of registration three (3) days after the date of the invoice. These monthly invoices shall be generated on the monthly anniversary of the agreed date for the performance of the Services set forth on the Customer’s first confirmed Order.

3.2.2.   Q Services Supplies

Managed by Q will issue invoices to the Customer on a monthly basis for the Supplies provided to the Customer as agreed through the initial registration as may be modified by the Customer in accordance to Section 2.7. Managed by Q will charge the Customer’s credit card provided at the time of registration three (3) days after the date of the invoice.  These monthly invoices shall be generated on the monthly anniversary of the agreed date for the performance of the Services set forth on the Customer’s first confirmed Order.

3.2.3 Q Services Maintenance

Managed by Q will issue invoices to the Customer on a monthly basis for the Maintenance Services provided to the Customer as agreed through the initial registration as may be modified by the Customer in accordance to Section 2.7  Managed by Q will issue an invoice to the Customer for the actual hours worked at the hourly rate agreed in the applicable Agreement. The Customer understands that the final amount may be less than or greater than the estimated amount and agrees to pay for the actual amount of time such Services required. Managed by Q shall charge the Customer’s credit card provided at the time of registration three (3) days after date of the invoice.

3.2.4 Third Party Services

Third Party Services are Services purchased through the Managed By Q Marketplace.  A Customer will always be made aware when Services purchased through the Managed By Q Marketplace are provided by Third Parties.  Third Party Services will be either billed at the frequency and hourly rate agreed between Managed by Q and the Customer in the applicable Agreement.  The Customer understands that the final amount may be less than or greater than the estimated amount and agrees to pay for the actual amount of time such Services required, so long as Customer has approved such changes in advance. Managed by Q will charge the Customer’s credit card provided at the time of registration three (3) days after the date of the invoice.

Unless otherwise set forth in the applicable Agreement, Customer shall pay each such invoice via credit card as set forth above or check no later than fifteen (15) days after the date of such invoice.

Managed by Q, at its sole discretion, may charge any and all outstanding payments under the applicable Agreement that remain unpaid for a period of sixty (60) days after the date of the invoice, to the credit card provided by the customer at the time of registration, and the customer hereby agrees to such charge.  Notwithstanding the above or any remedies Managed by Q may have at law or in equity, Managed by Q may, at its sole discretion, suspend the provision of Services or delivery of Supplies if Customer fails to pay any overdue amount within ten (10) days after the written notice from Managed by Q.  In addition, the Customer shall pay a late fee equal to ten percent (10%) of the overdue amount for each thirty calendar days the amount is overdue.  The late fee shall be prorated for any period that is less than thirty (30) calendar days.

3.3           Taxes.  Unless otherwise set forth in the applicable Agreement, the Fees, and other amounts payable to Managed by Q hereunder do not include any sales, use, value added or other similar taxes, tariffs or duties, payment of which will be the sole responsibility of Customer, unless otherwise specified by Managed by Q.  In the event Customer is required by law to make any deduction or to withhold from any sum payable hereunder, then the sum payable by Customer to Managed by Q shall be paid to Managed by Q net of such deduction or withholding.  Customer shall pay the applicable tax authorities any such required deduction or withholding.  Customer shall reimburse Managed by Q for any such amounts that Managed by Q pays on Customer’s behalf no later than simultaneously with the Fees for the related Services.

4.     OWNERSHIP.

4.1           Managed by Q Materials.  Managed by Q shall exclusively own all rights, title and interest in and to any processes, methodologies, techniques, data, information, software and materials of any kind used by Managed by Q and/or its personnel in connection with the provision of the Services and delivery of Supplies including all Managed by Q Confidential Information (as defined below), worldwide copyrights, trademarks or service marks, moral rights, trade secret rights, know-how and any other intellectual property rights therein, and any improvements thereto (collectively “Managed by Q Materials”).  Customer shall have no rights in the Managed by Q Materials except as expressly agreed to in writing by the parties.

5.     NETWORK DELAYS.

The Online Platform, Services and any software used by Managed by Q may be subject to limitations, delays, and other problems inherent in the use of the internet, telecommunications, networks and electronic communications.  Managed by Q is not responsible for any delays, delivery failures, or other damage resulting from such problems.

6.     MARKETING COMMUNICATIONS AND OPT-OUT.

Managed by Q may provide promotional information to the Customer on a regular basis, including via email or any other means of electronic communication.  The Customer may opt out of these communications by sending an email to unsubscribe@managedbyq.com.

7.     CONFIDENTIAL INFORMATION.

7.1           Confidential Information.  “Confidential Information” means: (i) any know-how, trade secrets, and other business or other information of either party that is designated by as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary.

7.2           Exclusions.  Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of these Terms; (ii) is already known by the other party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the other party without use of the other’s Confidential Information; (iv) is rightfully received by the party from a third party without restriction on use or disclosure; or (v) is disclosed with the prior written approval of the party owning the Confidential Information.

7.3           Use and Disclosure Restrictions.  Neither party shall use the other’s Confidential Information except as necessary for the performance or enforcement of these Terms and any applicable Agreement and will not disclose such Confidential Information to any third party except to those of its employees, subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of these Terms and any applicable Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the Terms set forth in this Section.  Both parties shall employ all reasonable steps to protect the other’s Confidential Information from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance.  The foregoing obligations will not restrict either party from disclosing the other’s Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other to contest such order or requirement; (ii) to its legal or financial advisors; and (iii) as required under applicable securities regulations.

8.     WARRANTY.

8.1           Warranty Disclaimers.  MANAGED BY Q DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE ONLINE PLATFORM OR ANY SOFTWARE PROVIDED BY MANAGED BY Q FOR USE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES OR SOFTWARE (INCLUDING BUT NOT LIMITED TO ANY CLEANING SERVICES AS WELL AS OTHER SERVICES SET FORTH IN AN AGREEMENT) WILL MEET THE CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL OR SUPPLIES PURCHASED OR OBTAINED THROUGH ANY SERVICE (INCLUDING BUT NOT LIMITED TO ANY CLEANING SERVICES) WILL MEET THE CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE ONLINE PLATFORM, ANY SERVICE, SOFTWARE OR SUPPLIES WILL BE CORRECTED, OR (F) THE SOFTWARE OR THE SERVER(S) THAT MAKE THE ONLINE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.   MANAGED BY Q WILL PROVIDE THE SERVICES USING A COMMERCIALLY REASONABLE AMOUNT OF SKILL AND CARE.  BEYOND THAT, MANAGED BY Q MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY THE SERVICES, ONLINE PLATFORM, ANY OTHER SOFTWARE OR SUPPLIES.

THE SERVICE, SOFTWARE AND SUPPLIES PURCHASED BY THE CUSTOMER THROUGH AND/OR FROM MANAGED BY Q ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ENTIRE RISK ARISING OUT OF ITS USE OF THE ONLINE PLATFORM, SOFTWARE, SERVICE AND ANY SUPPLIES PURCHASED THROUGH AND/OR FROM MANAGED BY Q, REMAINS SOLELY WITH THE CUSTOMER.

9.     TERM AND TERMINATION.

9.1           Term.  These Terms shall remain in force effect for as long as the applicable Agreement is in effect.

9.2           Termination for Convenience. Unless otherwise set forth in an Agreement, any Agreement may be terminated for convenience by either party by giving thirty (30) days’ prior written notice to the other party; provided that Customer shall continue to be responsible for Fees incurred for all Services and/or Supplies ordered prior or during the notice period.

9.3           Termination for Cause.  Each party shall have the right to terminate any Agreement at any time by written notice to the other party if the other party breaches any material term of these Terms and/or an Agreement, including, but not limited to the failure of Customer to timely pay in full any Fees or any other expenses payable to Managed by Q pursuant to these Terms and the applicable Agreement, and fails to cure such breach within three (3) business days after receipt of written notice thereof.

In the event of a probable breach of the Agreement by the Customer or any of its representatives, Managed by Q reserves the right to (i) modify or discontinue, temporarily or permanently, the Services (or any part thereof) and (ii) refuse any and all current and future use of the Online Platform or suspend or terminate the Customer’s account (or any part thereof) on the Online Platform.  Managed by Q shall not be liable to the Customer or any third party for any modification, suspension or discontinuation of the Service.  Managed by Q will use good faith and reasonable efforts to provide notice to the Customer prior to suspension or termination of its account by Managed by Q.

9.4           Bankruptcy, Insolvency.  Either party may terminate any Agreement by written notice to the other party, effective upon receipt with no right to cure the default, if the other party files a petition for bankruptcy, reorganization or arrangement under any state statute, or makes an assignment for the benefit of creditors or takes advantage of any insolvency statute or similar statute, or if a receiver or trustee is appointed for the property and assets of the party and the receivership proceedings are not dismissed within sixty (60) days of such appointment.

9.5           Effect of Termination.  Upon the expiration or termination of any Agreement: (i) each party will promptly return to the other party all Confidential Information, keys, fobs, iPads, or any other device provided by the other party, or at the other party’s request, destroy all Confidential Information of the other party in its possession or control; and (ii) unless otherwise set forth in an Agreement, Customer shall pay all accrued and unpaid Fees and other expenses incurred through and including the effective date of such expiration or termination of the applicable Agreement(s).

9.6           Survival.  The rights and obligations of the parties contained in Sections 3, 4, 7, 8, 9.5, 9.6, 10, 11, 12, 13 and 14 shall survive the expiration or termination of any Agreement.

10.  INDEMNIFICATION.

Customer shall indemnify, defend and hold Managed by Q and its directors, officers, employees, shareholders, affiliates, agents and representatives, harmless, from and against any and all liability, claims, lawsuits, losses, demands, damages, costs and expenses, including but not limited to reasonable attorney’s fees, expert’s fees, court costs, and other costs (the “Losses”) arising from any third party claim due to (i) any use of the Services and/or Supplies, except to the extent such Losses have been incurred as a direct result of Managed by Q’s gross negligence or willful misconduct, (ii) any breach of any of Customer’s representations or covenants or other terms contained in an Agreement or any other agreement in which these Terms are incorporated or to which these Terms are attached or made part of, (iii) a specification or instruction provided by or on behalf of Customer; (iv) bodily injury, personal injury (including death) to any person, damage to tangible property, or violation of any third party intellectual property rights, resulting from the negligent acts or willful misconduct of Customer or its personnel or agents hereunder; (v) the Customer’s violation of any third party rights including but not limited to rights of third party vendors referred to the Customer via the Online Platform; or (vi) the Customer’s use or misuse of the Online Platform, any Services or Supplies.

11.  LIMITATION OF LIABILITY.

In no event shall Managed by Q AND/OR ANY OF ITS LICENSORS OR THIRD PARTY VENDORS be liable to Customer for any indirect, incidental, consequential, punitive, special or exemplary damages of any kind, including, but not limited to, loss of profits, loss of business opportunity, loss of data, loss of use, and loss of production arising from or in any way connected to any Agreement, even if such damages were foreseeable and whether or not Managed by Q, ITS LICENSOR(S) AND/OR THIRD PARTY VENDOR has been advised of the possibility therefor.  The total liability of Managed by Q for any and all claims relating to or arising under any Agreement shall be limited to the sum of payments made by Customer to Managed by Q under such Agreement.  This limitation of liability shall apply to all legal theories, including breach of contract, tort and strict liability, whether for negligence or otherwise.

MANAGED BY Q MAY INTRODUCE THE CUSTOMER TO THIRD PARTY VENDORS FOR THE PURPOSES OF PROVIDING SERVICES. MANAGED BY Q WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDERS AND THE CUSTOMER EXPRESSLY WAIVES AND RELEASES MANAGED BY Q and its third party vendors FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO SUCH THIRD PARTY SERVICE VENDOR. MANAGED BY Q WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES BETWEEN THE CUSTOMER AND SUCH THIRD PARTY VENDORS. RESPONSIBILITY FOR THE DECISIONS THE CUSTOMER MAKES REGARDING SERVICES OFFERED VIA THE ONLINE PLATFORM (WITH ALL ITS IMPLICATIONS) RESTS SOLELY WITH THE CUSTOMER.

WITHOUT LIMITING THE GENERALITY OF THE PRECEDING PARAGRAPH, PARTIES OTHER THAN MANAGED BY Q OPERATE STORES OR BUSINESSES, PROVIDE SERVICES, OR SELL PRODUCT LINES THROUGH THE SERVICES.  IN ADDITION, WE MAY PROVIDE LINKS TO THE WEBSITES OF AFFILIATED COMPANIES AND CERTAIN OTHER BUSINESSES. WE ARE NOT RESPONSIBLE FOR EXAMINING OR EVALUATING, AND WE DO NOT WARRANT THE OFFERINGS OF, ANY OF THESE BUSINESSES OR INDIVIDUALS OR THE CONTENT OF THEIR WEB SITES AND/OR BUSINESSES.  MANAGED BY Q DOES NOT ASSUME ANY RESPONSIBILITY OR LIABILITY FOR THE ACTIONS, PRODUCTS OR CONTENT OF ANY OF THESE OR ANY OTHER THIRD PARTIES.

12.   PUBLICITY.

Customer agrees that Managed by Q may, at its own expense, refer to Customer and utilize Customer’s logos and marks in promotional materials, press releases, advertisements, and other public disclosures, solely as a reference to representative customers of Managed by Q.

13.   NON-SOLICITATION.

None of Customer or any of its affiliates shall directly or indirectly solicit or hire any employee or sub-contractor of Managed by Q, or any of their affiliates, or any Third Parties during the term of any Agreement and for a period of six (6) months following its expiration or termination, without prior written approval of Managed by Q.  The Customer acknowledges and agrees that Managed by Q has invested significant time and resources in the hiring, training and management of its employees and contractors and such amount fairly represents the damages that would be sustained by Managed by Q due to a breach of this clause. In the event of a breach of this Section 13 by the Customer, Customer shall pay a standard recruiting fee equal to 20% of the employee’s annual salary.

14.   GENERAL PROVISIONS.

14.1        Modification of Terms.  Managed by Q may amend or modify these Terms from time to time. Managed by Q may, at its sole discretion, provide Customer with written notice of any such changes, revisions, amendments or modifications, provided, however that any such changes, revisions, amendments or modifications shall become effective without any further action by any party and that they shall not apply to any Agreement prior to the effective date of such changes, revisions, amendments or modifications. Managed By Q may modify these Terms or any additional Terms that apply to a Service to, for example, reflect changes to the law or changes to the Services. You should look at the Terms regularly. Managed By Q will post notice of modifications to these Terms on this page.  Managed By Q will notify you when its Terms have been updated.  Changes will not apply retroactively and will become effective no sooner than thirty days after they are posted. However, changes addressing new Services or changes made for legal reasons will be effective immediately.  If you do not agree to the modified Terms for a Service, you should discontinue your use of that Service and provide notice to Managed By Q.

If there is a conflict between these Terms and the additional Terms, the additional Terms will control for that conflict.

If you do not comply with these Terms, and Managed By Q  does not take action right away, this doesn’t mean that Managed By Q is giving up any rights that it may have (such as taking action in the future).  If it turns out that a particular Term is not enforceable, this will not affect any other Terms.

14.2        Assignment.  Neither party may assign any Agreement or any other contract with Managed by Q or any of its rights or obligations without the express prior written consent of Managed by Q.  Any purported assignment or delegation in violation of this Section shall be null and void.  No assignment or delegation relieves Customer of any of its obligations under these Terms and/or an Agreement.  Subject to the foregoing, these Terms will bind and inure to the benefit of the parties’ permitted successors and assigns.

14.3        Governing Law.  These Terms, all Agreements and all claims arising in connection with any Agreement shall be governed and construed in accordance with the laws of the State of New York without giving effect to the conflicts of law principles thereof.

14.4        Dispute Resolution.  To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), the Customer and Managed by Q agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice by the other party from the party asserting a claim.

Managed by Q takes Disputes seriously and will work to investigate any claims made.  In the event of any Dispute resulting from a claim of theft by one of Managed by Q’s employees or contractors, the Customer agrees to notify Managed by Q immediately. Managed by Q shall investigate such matter and may work with private investigators and the policy as it deems necessary. The Customer shall share any supporting evidence with Managed by Q or any investigative body.

If the Customer and Managed by Q are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Service or Software (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding individual arbitration. Any election to arbitrate by one party will be final and binding on the other. THE CUSTOMER UNDERSTANDS THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The Customer’s arbitration fees and share of arbitrator compensation shall be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law.

All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the Dispute with the same remedies available in court, however, any relief must be individualized to the Customer and shall not affect any other customer.  The Customer and Managed by Q agree that each may bring claims against the other in arbitration only in the Customer’s or Managed by Q’s respective individual capacities and in so doing the Customer and Managed by Q  hereby waive the right to a trial by jury, to assert or participate in a class action lawsuit or class action arbitration (either as a named-plaintiff or class member), and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind.  If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular cause of action, then that cause of action (and only that cause of action) must remain in court and be severed from any arbitration.

The foregoing arbitration agreement shall be governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act. The terms of the arbitration agreement provisions shall survive after this Agreement terminates or the Customer’s use of the Service ends.  Except as set forth above, if any portion of this arbitration agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement.

Each party retains the right to bring an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis in a federal or state court in New York, New York, with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights.  It is the parties’ intent that this Agreement be construed to the fullest extent allowed by law, such that the only exceptions shall be for claims under California’s Private Attorney General Act (Cal. Lab. Code § 2698, et seq.) or as otherwise required by non-waivable provisions of applicable law.

Arbitration will take place in New York, New York.

14.5        Injunctive Relief.  In the event of a violation or threatened violation of Sections 4, 7 and/or 13 by Customer, Managed by Q shall have the right, in addition to such other remedies as may be available to it at law or pursuant to these Terms, to temporary or permanent injunctive relief enjoining such act or threatened act in any court of competent jurisdiction without any requirement to post a bond or provide other security.  The parties acknowledge and agree that the legal remedies for such violations or threatened violations are inadequate and that Managed by Q would suffer irreparable harm.

14.6        Waiver of Jury Trial.  The parties hereby irrevocably waive their right to a trial by jury in any litigation in any court with respect to any claim, controversy or dispute arising out of or in connection with any Agreement or these Terms.

14.7        Notices.  All notices, requests, consents, claims, demands, waivers and other communications required or permitted under these Terms and/or any Agreement shall be in writing and delivered in person, by electronic transmission including email (provided receipt shall have been acknowledged in writing by the recipient thereof), by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested. All communications for Managed by Q must be sent to Managed by Q, Attn.: Legal Department, 161 Avenue of the Americas, 11th Floor, New York, NY 10013 and to the Customer at the address provided by the Customer at the time of registration, or to such other address that may be designated by the respective parties in writing from time to time.

14.8        Waiver.  The failure or delay by either party to exercise any right under these Terms and/or any Agreement shall not be construed as waiver of such right.

14.9        Entire Agreement; Conflicts.  These Terms together with the applicable Agreement constitutes the entire and exclusive agreement of the parties regarding its subject matter and supersedes any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter.  In the event of a conflict between the provisions of these Terms and the provisions of an Agreement, the provisions of an Agreement shall govern and control.

14.10     Severability.  If any provision of these Terms or an Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by the applicable law.

14.11     Force Majeure.  Except for Customer’s obligation to pay the Fees and other expenses payable to Managed by Q, neither party will be responsible for any failure or delay in its performance under these Terms or any Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.

14.12     Counterparts.  Each Agreement may be executed in counterparts, in electronic form or facsimile, each of which will be deemed an original, and all of which together will constitute one and the same instrument.