1. Terms of Service
These terms of service by Quack for the use of the Quack tool (as applicable from time to time "ToS") apply for contracts between Quack ("The Quack") and its customers as business persons regarding the use of the 'Quack' IT tool (software-as-a-service) ("Software" or "Tool") as described in detail on www.thequack.ai ("Website") and related services (the Software and related services jointly the "Service(s)"). The provided scope of the Services depends on the package the Customer subscribes for. The Customer shall be fully responsible for the compliance with these ToS by its respective users using the Services. The Customer shall support the Quack with respect to the Services within a reasonable scope. The Quack hereby grants to Customer, and Customer accepts, a non-exclusive, revocable, non-sublicenseable, non-transferable right to use the Software by the means provided for such use by Customer only and for the term of this Agreement, only internally within its organization or for such other purposes as may be specifically contemplated by any other agreement or order form entered into between Customer and The Quack which relates, inter alia, to the provision of the Software (an “Additional Agreement”), and only in accordance with the documentation accompanying the Software, as authorized in these ToS and subject to such restrictions and limitations as contained herein. You specifically agree that the right to use and access the Software is granted to Customer and not sold and that any reference (if any) in the Additional Agreement or any other document between Customer and The Quack to "sell" and the like terms shall mean the sale of the access rights, and not the sale of the Software, which is never sold. The Program may be accessed only through the workstations and by the users who are authorized to use the Software in accordance with the Additional Agreement and only in the country identified in the Additional Agreement. Customer may only use those features and functions of the Software for which it has paid The Quack a fee.
3. Availability; Changes to the ToS
The ToS are available on the Website www.thequack.aiThe Quack is entitled to change these ToS at any time with a reasonable notice period. After the publication of an amendment notice, the Customer has an extraordinary right of termination of the agreement based in these ToS. The changes shall be deemed approved, if the Customer does not object in writing to the changes within the reasonable notice period and has been notified of such effect in the respective amendment notification.
4. Services provided by The Quack
The use of the Software requires the successful registration as well as the set-up of a user administration account ("Account") via the Website. Customer must fill in all required fields in the sign-up form truthfully and completely. By clicking on the respective sign-up-button the Customer submits an offer on the conclusion of an agreement to use the Tool (and related Services) and agrees to these ToS valid at the time of registration. The Quack accepts this offer in writing or by providing the Service. There is no legal entitlement for using the Service provided. The Quack has the right to stop or deny any registration without giving any reasons. The Quack makes the Tool available on its own servers or on the server of an engaged data processor ("Data Centre"). The Software is kept available via this Data Centre along with the data that is recorded, elevated, used and held, saved onto the open platform and kept available for remote data access in the interest of intended polling. Use of the Tool will be made available to the Customer by The Quack from the router output via the Data Centre. The establishing and maintaining of the data connection between the Tool user's end device and the delivery point operated by The Quack falls under the Customer's responsibilities. Accessing the data saved onto the Tool will no longer be possible for the Customer after termination of the agreement. Access to the Tool and the stored data is possible at all times outside of the maintenance window, unless The Quack is required to carry out emergency support works or take other urgent measures in order to maintain the Tool's usability. The object or source code of the Software will not be disclosed. The Quack is not obliged to make a document or a separate instructions manual available to the Customer. The Quack will give an overview of the Tool's basic functions and will give the Customer access to the relevant information, if necessary.
5. Third party services
In order to use The Quack, you must first register a user account through the website. You may register through your Google account or by entering your email address and a password of your choice. Your user account is personal, and you are not entitled to give access to or transfer your account to anyone else. You are responsible for keeping your login details confidential and not disclosing or otherwise sharing your login details with anyone else. If you suspect that someone else has access to your account, please contact us immediately.
7. Intellectual Property Rights
Customer acknowledges that all Intellectual Property Rights in and relating to the Services are owned by or licensed to The Quack. These Terms does not convey to Customer an interest in or to the Services or Software or any part thereof, but only a limited right of use revocable in accordance with the terms of this Agreement. "Intellectual Property Rights" means any and all of the following and all rights in, arising out of, evidenced by or associated with: (i) all inventions, developments and discoveries (whether patentable or not), improvements, trade secrets, proprietary information, know how, technology, software, source code, object code, technical data, and all documentation in any media embodying or evidencing any of the foregoing, (ii) copyrights, copyright registrations and applications therefor, (iii) worldwide patents and utility models, invention registrations, and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, (iv) trademarks, service marks, trade names, trade dress, domain names, logos, goodwill, and (v) any corresponding or equivalent rights to any of the foregoing, whether registered or not, anywhere in the world; any names, logos and other identifying marks included in or associated with the Software and Services or any related documents, identifying The Quack or its products are trademarks of Quack. This Agreement does not grant any right, title or interest in connection with any trademarks, service marks, domain names or other identifying marks or elements owned by Quack or any third party and Customer agrees that no such right, title or interest shall be asserted by it and shall remain with Quack.
The Software made available to Customer shall correspond in all material aspects to the product description provided on the Website (the "Warranty"). Warranty claims do not exist in the case of a non-material deviation from an agreed or presumed quality or in the case of only a non-material impairment of usability. The Quack is entitled to change the design and to adapt the structure and functions of the Tool and will inform the Customer of any significant changes. If The Quack is obliged to remove any errors / shortcomings of the Tool and to bring about / maintain the contractually elaborated nature of the Tool, The Quack is entitled to choose the method in which it removes said shortcomings. The Quack is entitled to decline the use of the Tool and the saved data once a week for a maximum of two (2) hours, in order to be able to bring changes to the Tool or to carry out other maintenance activities. Customer notes that The Quack may not be responsible for any interruptions of the Tool caused by third party providers. In the event of any defects or errors relating to the Services, Customer shall report such defects or errors via email to firstname.lastname@example.org and include sufficient details relating to the defect in such reporting.
9. Content; Rights Grant
When using the Tool and Services, Customer (or its users) may provide content in or as part of the Services such as product analytics, user events, screen recording, etc. which is gathered automatically by Quack ("Content"). In general, all copyrights, trademarks, and other intellectual property rights in and relating to such Content shall be owned by or licensed by Customer. When providing any Content in the Services, Customer grants to The Quack for the term of the Agreement, a world-wide, non-exclusive, royalty-free, sub-licensable and transferable license to use, modify, publicly perform, publicly display, reproduce, and distribute Content on and through the Services. If such Content is provided to The Quack via feedback on the features of the Services such license according to the foregoing sentence shall be unlimited in time and extended to the scope for any use to improve the Services. Customer bears responsibility for ensuring that the Content entered comply with the relevant laws and regulations, and, importantly, do not infringe any third party's rights. Customer hereby represents and warrants that Customer, and its users, have authorized Quack’s automatic collection of content as specified above, and have waived, and hereby do waive, all claims against Quack in respect of such collection of Content.
10. Customer's Warranty
Customer hereby represents and warrants that, as applicable, (i) it owns any Content provided, holds the necessary rights or is otherwise authorized to use such Content for the purpose of the Service; (ii) such Content does not infringe any third party rights (copyrights, trademarks, other intellectual property rights) or infringes such third party's privacy and (iii) such Content was authorized to use by its users, which shall have no claim against Quack in such Content’s regard. Should The Quack be notified that a profile contains unlawful content (such as texts, photos, videos etc.), The Quack is legally entitled to block this profile temporarily or permanently, The Quack will inform the Customer of the third party's complaint, allow the Customer (or its user) to justify the related statement and forward the justification to the third party if reasonable.
11. Prohibited Use
Customer agrees not to provide or otherwise make available any content, which may be collected automatically by Quack, that is or could reasonably be viewed as unlawful, racist, hostile, violent, discriminatory (including relating to race, religion, sex, sexual orientation, age, disability, ancestry or national origin), harmful, harassing, defamatory, vulgar, obscene or otherwise objectionable or which contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. The Quack has the right to remove uploaded content, if The Quack decides in its sole discretion that it results in or from a breach of law or any part of these ToS.In particular, Customer (or users) may not:- use the Services for any other purpose than provided for in these ToS, in particular, not offer the Services to unauthorized third parties or sell, sub-license, lease, transfer or otherwise commercially exploit the Software;- interfere with or disrupt the Services or servers or networks;- remove or amend any proprietary notices or other ownership information from the Service;- collect or harvest any personally identifiable information, including account names, from the Service;- decompile, reverse engineer, disassemble or hack any of the Service or defeat or overcome any of The Quack's (or engaged third party providers') encryption technologies or security measures or modify, adapt, translate, divide, part or revise the Software, or any part thereof, or otherwise use parts, portions or elements of the Program, or create derivative works or any enhancement or adaptations based on the Software, or any part thereof;- conduct any action that restricts or inhibits anyone's use or enjoyment of the Service or may harm or offend or expose The Quack or its users to liability, in particular refrain from use that can disable, overburden, damage or impair the Service (or the ability to engage in real time activities via the Service) or use of robots, spiders or other automatic device, process or mean (to access the Service);- - use any device, software or routine to interfere with the proper working of the Service, in particular, not use any viruses, trojan horses, worms, logic bombs or anything malicious or technologically harmful;- - not perform attempts for unauthorised access, interference, damage or disrupt, copying, distributing or disclosing any parts of the Service;- - transmit or procure of any junk mail, chain letter, spam, or any other similar solicitation;- - harm minors by exposure of inappropriate content, including but not limited to Content;- - impersonate The Quack, The Quack's employees or other users of the Service or their employees;- - pursue any threatening, fraudulent, harmful purpose or activity; and/or- use the Services in any other way not permitted by these ToS.In the event of a violation of the above by the Customer The Quack shall be entitled to deny access to the Services (temporarily) and - if reasonable - immediately terminate the agreement.
12. Customer Account and Information
Depending on the package the Customer has chosen for the use of the Tool, Customer may set up additional user accounts via the admin Account and control and edit the admin rights relating to such additional user accounts. Customer shall be solely responsible for such Account and additional user accounts (if any) according to the details set out in these ToS. If there are any changes to the Customer's relevant information, e.g. billing or email address, Customer is obliged to inform The Quack of the new data immediately in writing, for example via changing the settings in the Account, provided this is relevant to the fulfillment of the agreement.
13. Back-up rights and obligations
The Customer is obliged to regularly save / backup data, including Content, created by or saved onto the Tool itself, either analogically or digitally. The Quack is entitled to regularly make backups (backup copies) to comply with its legal obligations (including retention periods), secure an optimal running of the Tool or in case The Quack has a legitimate interest in the backup / archiving of contents, for example if a third party has published claims against The Quack or users The Quack is entitled to keep the relevant backup / archived content for such purposes, in general until the legal ending of these proceedings.
14. Liability of The Quack
Except for the Limited Warranty in Section 8, and to the maximum extent permitted by applicable law, Quack provides the Services and Software AS IS AND WITH ALL FAULTS, and hereby disclaims all other warranties and conditions, either express, implied, or statutory, including, but not limited to, any implied warranties, duties or conditions of merchantability, fitness for a particular purpose or non-infringement. Quack does not warrant that the Services and Software are error or bug-free or that the operation of the Software will be secure or uninterrupted. The Software is not designed, manufactured or intended to any use in a fail-safe performance environment in which the failure of the Software could lead to irreversible consequences such as death, personal injury or significant damage to property, such as, for example, life-support systems, air-traffic control or hazardous control systems. Customer acknowledges that use of the Services and Software by and on it, and the use of any Data, information, analyses and other data or output generated by the Software or resulting therefrom, is at Customer's sole risk and that Customer shall be solely responsible in connection with such use and the results thereof, including but not limited to any decisions based upon interpretations, recommendations analyses and conclusions derived from such use. Customer assumes sole and exclusive responsibility for assessing the risks, advantages and consequences of using the Software, and for all consequences resulting from such use and from the use of any data, information, analyses and other output generated by the Software or resulting therefrom.Customer agrees to indemnify and hold Quack and its directors and officers (the "Indemnified Parties"), harmless from any claim, demand or damage, including reasonable attorney’s fees, asserted by any third party due or arising out of, or in connection with, your use of the Software and Services, including third party software and any part thereof. To the maximum extent allowed by law, the Indemnified Parties shall not be liable for any indirect, incidental, special, consequential, punitive or exemplary damages whatsoever, (specifically including but not limited to damages for loss of business, loss of profits, loss of use, data, goodwill or for business interruption), arising out of or in connection with the use of or inability to use the program, the system, the program's compatibility or integration with Customer's system or any part thereof, even if Customer has been advised of the possibility of such damages and shall not be liable for damages resulting from automatic disabling of the Software upon termination or expiration of the terms. In any event, and without derogating from the aforesaid, the aggregate liability of any of the Indemnified Parties hereunder or otherwise with respect to or in connection with the Software and Services (including any liability incurred under any additional agreement (as defined in clause 1 above) shall be limited to two thousand five hundred US Dollars (US $2,500). Any liability hereunder shall also count toward any maximum amount of liability specified in an additional agreement. The aforesaid limitations will apply regardless of the failure of the essential purpose of any limited remedy. The Quack shall only be liable in accordance with statutory provisions, provided that claims for damages are based on willful intent or gross negligence. The limitation and/or restriction of The Quack's liability in this Section shall equally apply to the personal liability of the Indemnified Parties.
15. Remuneration; Price List
The remuneration for the Services shall be determined in an offer issued by Quack to the Customer based on these ToS (the "Offer").
16. Payments and Billing
The Quack shall bill the Customer in accordance with the Offer. Payments not made within ten (10) days of invoicing will be deemed in arrears. For accounts in arrears, if any amount is more than ten (10) days overdue, without the requirement of providing notice of such arrears, The Quack may suspend service to such account and bring legal action to collect the full amount due, including any attorneys' fees and costs.
17. Term; Termination
The Offer will include the term of the services and the right to termination. Any termination shall be in writing.
Each party agrees and undertakes, with respect to any information received by the respective other party marked as 'confidential' or appearing confidential ("Confidential Information"):- to use all Confidential Information only for the purpose of the Services, and not to use the Confidential Information for its own benefit or to compete or obtain advantage vis-à-vis each party's in any commercial activity or transaction which may adversely affect such party;- not to disclose Confidential Information to any third party, whether in whole or in part either directly or indirectly in any shape or form, except to each party's employees or representatives and/or other users of the Service as is reasonably required in connection with using the Service;- not to copy, reproduce or reduce to writing any part of the Confidential Information except as may be reasonably necessary pursuant to the first bullet point above and to ensure that any copies, reproductions or reductions to writing so made shall be the property of the respective party.This obligation shall not apply to any information that is or becomes generally known to the public through no fault or breach of these ToS or any other confidentiality obligation applicable; is legally known to a party at the time of disclosure without an obligation of confidentiality; or a party rightfully obtains from a third party without restriction on use or disclosure and without a breach of a confidentiality obligation by such third party.Each party is obligated to inform the respective other party immediately if such party becomes aware of any violation of this Section. Nothing in these ToS grant any rights to any party under any patent, copyright, trade secret or other intellectual property right nor will these ToS grant any rights in or to the Confidential Information except as expressly set forth in these ToS.
19. Personal Data and Privacy
Customer represents and warrants that it and its users have all required permissions and consents required to provide access to Quack of any personal data and do hereby consent to Quack’s automatic collection of such personal data.
This Software has in part been generated by an artificial intelligence system and may contain errors, inconsistencies, or outdated information. It is provided as-is without any warranties or guarantees of accuracy.
21. References; Feedback
Customer agrees that The Quack may identify the Customer (or company and use company's logo) on the Website and in marketing materials to identify Customer (or company and use company's logo) as a user of the Services, and Customer hereby grants The Quack a non-exclusive, royalty-free license to do so on the Website or in any media now or later developed in connection with any marketing, promotion or advertising of the Website or the Services, and if Customer provides suggestions, ideas, feedback, or recommendations to The Quack regarding the Website or the Services ("Feedback"), The Quack will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as The Quack sees fit, without any obligation or restriction of any kind to Customer.
22. English Language
Any and all documents, correspondence and notices with respect to these Terms and the license granted hereunder, including with respect to any dispute or disagreement between the parties, shall be in English language only.
Should any term of these Terms be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
24. No Waiver
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
25. Reservation of Rights
All rights not expressly granted herein are reserved by The Quack.
Any attempt by You to sublicense, assign or transfer any of the rights, duties or obligations hereunder other than in accordance with the terms of these Terms shall be void ab initio. Nothing herein shall be interpreted as preventing The Quack from assigning or transferring all or any part of its rights or obligations hereunder to a third party.
In the event of any conflict or inconsistency between these Terms and any Additional Agreement, then to the extent of such conflict or inconsistency is with respect to, or in connection with, the Software, these Terms shall govern and prevail.
28. Applicable law and dispute resolution
All rights and obligations hereunder will be governed by the laws of the State of Delaware, without regard to the conflicts of law provisions of such jurisdiction.
These Terms of Service were last updated on November 14, 2023 .