Service Terms and Conditions

iTOK is a service provided by Quick Knowledge Pty. Ltd.  ABN: 40 053 635 715 (“QK”)

BY CLICKING THE "ACCEPT" BOX BELOW, OR BY REGISTERING FOR, USING OR RECEIVING ANY OF QK'S SERVICES, YOU (A) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; (B) REPRESENT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO BIND YOURSELF AND/OR THE PERSON OR ENTITY FOR WHOM YOU ARE ENTERING INTO THIS AGREEMENT; (C) REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (D) REPRESENT AND WARRANT THAT THE INFORMATION THAT YOU HAVE PROVIDED OR WILL PROVIDE TO QK IS OR WILL BE CORRECT AND COMPLETE IN ALL RESPECTS, ACKNOWLEDGE THAT QK HAS AND WILL RELY UPON THE INFORMATION THAT YOU PROVIDE AND THAT ANY INCORRECT OR INCOMPLETE INFORMATION THAT YOU PROVIDE TO QK MAY RESULT IN QK WITHHOLDING, SUSPENDING OR TERMINATING THE SERVICES AND/OR TERMINATING THIS AGREEMENT; AND (E) AGREE TO BE BOUND BY THIS AGREEMENT, AS MAY BE UPDATED BY QK FROM TIME TO TIME IN ITS SOLE DISCRETION.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR CANNOT MAKE ANY OF THE FOREGOING REPRESENTATIONS, DO NOT CLICK THE "ACCEPT" BOX OR USE OR RECEIVE ANY SERVICES FROM QK.

THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UPON WHICH QK AGREES TO PROVIDE THE SERVICES TO YOU AND THE TERMS AND CONDITIONS UPON WHICH YOU AGREE TO USE OR RECEIVE THE SERVICES.  YOU ACKNOWLEDGE AND AGREE THAT (A) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY OF THE FEES SET FORTH IN THIS AGREEMENT) MAY BE AMENDED BY QK FROM TIME TO TIME IN ITS SOLE DISCRETION WITH OR WITHOUT NOTICE TO YOU BY AMENDING THE THEN CURRENT SERVICE TERMS AND CONDITIONS FOUND AT REMOTE.QK.COM.AU/TERMS.ASPX, AND (B) YOU WILL BE BOUND BY ANY SUCH AMENDMENTS IMMEDIATELY UPON POSTING.  YOU SHOULD THEREFORE VISIT REMOTE.QK.COM.AU/TERMS.ASPX FROM TIME TO TIME TO READ THE THEN CURRENT SERVICE TERMS AND CONDITIONS.

PORTIONS OF THE SERVICES MAY BE SUBJECT TO THIRD PARTY LICENSES, WHICH MAY FURTHER AFFECT YOUR RIGHTS IN THE SERVICES. IN ADDITION THE USE OF THE HELPDESK SOFTWARE IS SUBJECT TO AN END USER LICENCE AGREEMENT OUTLINED AT REMOTE.QK.COM.AU/HELPDESKEULA.ASPX AND ALSO AT THE END OF THIS DOCUMENT. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE TERMS OF THE HELPDESK END USER LICENCE AGREEMENT.

1. RIGHT TO ACCESS AND MODIFY YOUR COMPUTER SYSTEMS AND PERIPHERALS.

You hereby (a) give the Company, through one or more of its employees, agents or affiliates or through any third party service provider, the right to remotely access your computer systems and other peripherals covered by the Services; (b) grant to the Company, through one or more of its employees, agents or affiliates or through any third party service provider, necessary and reasonable access to your computer systems and other peripherals on your premises; (c) give the Company, through one or more of its employees, agents or affiliates or through any third party service provider, the right to open, view, modify, edit, delete, or otherwise manipulate your computer software, applications, data, and data storage media including, without limitation, the computer operating system, word processing, spreadsheets, databases, workflow, graphics, audio, video, system drivers and libraries, and any other type of software or data that may be contained on your computer system, network or peripherals; and (d) give the Company, through one or more of its employees, agents or affiliates or through any third party service provider, the right to download and/or install software or other products on your computer system, network and other peripherals, including without limitation, memory chips, processor chips, cooling fans, batteries, hard drives, tape drives, storage devices, modem and communication devices, audio and video cards, network interface cards, hubs, routers, switches, printers, scanners, cables, and any other hardware which the Company may elect to install.

2. SERVICES.

For purposes of this Agreement, the term "Services" means the services that you may purchase or receive from the Company from time to time, including, without limitation, PC Care, HelpDeskTM for PC Care, OnDemand Help, Fix-IT,Total PC, Backup, QK Helpdesk, PC Optimization, Onsite Help, Outlook e-mail troubleshooting and repair services, wireless security set up and training services, MP3 player set up and training services, digital camera set up and training services, printer set up and troubleshooting services and new computer set up and assessment services.  You hereby acknowledge and agree that the Services provided to you by the Company will only cover the computers, software, hardware and peripherals specifically registered with the Company and that the Company may discontinue any of the Services from time to time in its sole discretion.

3. YOUR RESPONSIBILITIES.

In addition to your other obligations under this Agreement, you:

1. agree to promptly notify the Company whenever your personal or billing information changes (including for example, your name, address, telephone number, credit card number or credit card expiration date);
2. are solely responsible for all acts, omissions and use under and charges incurred with all of your accounts with the Company (including any secondary accounts or sub-accounts registered to one or more of your primary accounts), including, without limitation, all acts, omissions and use by persons other than you, with or without your permission;
3. acknowledge that you may be required to install certain software on your computer to assist the Company in providing the Services and that the Company has the right to terminate this Agreement and the Services if you (i) do not install all of the required software on your computer or (ii) alter, modify or disable any of the required software or its settings or configurations;
4. shall not resell the Services, use them for high volume purposes, use them as a virtual support centre, as determined solely by Company, or engage in similar activities;
5. shall only use the Services for the computer(s), software, hardware and peripherals specifically registered with the Company; Services provided for each additional computer shall incur separate and additional fees as set forth in Section 4 below; and
6. shall at all times comply with the Company's minimum system and hardware requirements, which the Company may change from time to time, and you acknowledge that the Company has the right to terminate this Agreement and the Services if you do not comply with the Company's minimum system and hardware requirements.

4. PRICING AND PAYMENT

4.1 Fees. You agree to pay the following fees inclusive of GST for the Services, which fees are subject to change by the Company at any time in its sole discretion:

• Any Windows XP, Windows 2000 or Windows Vista PC (desktop or laptop) - diagnose and fix problems
• MP3 Player--set up and train on product. Not responsible for malfunctions resulting in hardware or software provided by manufacturer
• Digital Camera - set up and train on product. Not responsible for malfunctions resulting in hardware or software provided by manufacturer
• Virus/Spyware -must use QK approved software to be supported
• Backup and File Restore - set up and support for automatic online backup and restoration of data files: photos, documents, music and emails
• Microsoft Office - installation, operation and limited training.
• General computer software problem fixes and assistance.
  

• Additional computers not covered by a Total PC subscription
  
• Hardware - training or any hardware related issues
• PDAs/smartphone issues
  
• Email filing or administration
• Administration tasks
  
• General training
  
• VOIP phone set up
• Domain and web site setup or administration
• Servers or server set-up or administration
  
• Router/Network Devices - set up or support for small networks, security and file sharing
• Any third party software that is not supplied by QK such as Quickbooks, MYOB, Peachtree, CAD programs, etc.

4.2 Payment Method.  You authorize the Company to charge all amounts owed to the Company under this Agreement to your credit card.  You will at all times provide to the Company valid and current credit card information.  If you terminate your credit card or elect to pay for the Services with a different credit card, or if you receive a new account number for your credit card, you shall immediately notify the Company of such termination or change.  You acknowledge that the Company does not accept debit cards for payment of any charges or fees.  If the Company for any reason is unable to bill your credit card for any amount owed under this Agreement, you authorize the Company to bill you directly for such amount, which amount, together with all late, chargeback and other fees set forth in this Section 4, shall be immediately due and payable.

4.3 Payment Obligations. You agree to pay all amounts owed to the Company under this Agreement, as well as any applicable taxes and other charges, when due. 

4.4 Late/Chargeback Fees; Attorneys' Fees. For any amount (a) not paid to the Company when due; or (b) paid by you via credit card which (i) the credit card issuer (the "issuer") later rejects or refuses to pay or (ii) the Company is later required to reimburse the issuer (each, a "chargeback"), then in each case, you agree to pay, in addition to the amount not paid, rejected or refused, a fee of 10% of such amount, or the highest rate allowed under applicable law, whichever is lower, and to pay interest on the overdue amount or chargeback at the rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, until paid in full.  You agree to pay all collection costs, including reasonable attorney's fees, incurred by the Company in collecting any amounts that you owe to the Company, whether incurred before or after civil litigation is commenced.

4.5 OnDemand Help. If you receive OnDemand Help services from the Company, the Company will use commercially reasonable efforts to troubleshoot, analyze, assess and correct the computer problem in question.  If the Company is unable to recommend a solution for your problem within the first 15 minutes of service, the Company will not charge you for such 15 minutes of service.  If you elect to further use the Company's services to correct the problem, you will be charged by the Company for such additional services.

4.6 Charges. The Company reserves the right to charge any amounts owed by you under this Agreement to your credit card or bill you directly for such amounts at any time after the conclusion of the Services.

5. PRIVACY POLICY AND CONFIDENTIAL INFORMATION

5.1 The Company will treat your personal information in accordance with the Company's then current privacy policy, which may be amended by the Company from time to time in its sole discretion (the "Privacy Policy"), which is incorporated into this Agreement by this reference.  The Privacy Policy is located at www.QK.com.au/privacy.aspx.  By accepting the terms and conditions of this Agreement, you agree to be bound by the terms and conditions of the Privacy Policy.

5.2 The Company agrees not to misuse or disclose to any third party any of your confidential information, except to the extent that such information is required to be disclosed by law or by court order or the Company is required to disclose such information in connection with the performance of the Services and the other obligations under this Agreement.  Confidential information is information which relates to the your research, development, trade secrets, business affairs, or personal or financial data but does not include information which is in the public domain or easily ascertainable by third parties of ordinary skill in computer systems design and programming.

6. AVAILABILITY OF SERVICE

6.1 You acknowledge that the Services may not be available at all times, and may not be available in the format generally marketed, and some personal computers may not be able to receive the Services even if initial testing shows that your connection was qualified or your computer environment was suitable.  In order for you to receive the Services, which will be provided remotely, the Company will qualify your Internet connection for the minimum line rate (speed) available for support based on the Company's standard line qualification procedures.  You acknowledge that the Services require high speed Internet access and that it is your responsibility to ensure that you have adequate connectivity to the Internet. 

6.2 You acknowledge and agree that the Company and/or its licensors or other third parties may, at any time, without notice or liability, take actions which restrict the use of the Services or limit the time of availability of the Services in order to perform maintenance activities and to maintain session control.

6.3 For all Services that require scheduling a session with the Company, the Company will use commercially reasonable efforts to schedule a mutually convenient service session within a reasonable period of time.  However, you acknowledge that circumstances outside of the Company's control (for example, a large scale outbreak of a new computer virus) may cause significant delays in the Company's ability to schedule a service session.

7. TERM AND TERMINATION

For subscription services such as PC Care, Total PC, or any other that have a reoccurring service charge.

7.1 Effective Date and Term.  The term of this Agreement shall commence upon your acceptance of this Agreement as set forth in the second paragraph above and shall continue until the earlier of (a) the termination of this Agreement pursuant to Section 7.2 or Section 7.3 or (b) the 1-year anniversary of such acceptance.  The term of this Agreement shall automatically renew for additional 1-year terms, subject to earlier termination pursuant to Section 7.2 or Section 7.3, until such time as the Company or you provide written notice of termination to the other party at least 30 days prior to the applicable renewal date.

7.2 Termination by You.  In the event that the Company breaches any provision of this Agreement, you agree to provide the Company with a right to cure the breach.  The Company shall have the right to cure any breach within 30 days of its receipt of written notice of such breach from you.  With respect to any claim that any of the Services were deficient, you must notify the Company within 5 days of the Company's performance of such Services.  If you fail to give the Company written notice of such deficiency within such 5-day period, the Company will not be required to remedy such deficiency.  You agree to give the Company reasonable access to your computer systems, networks and any peripherals, as well as access to your home or office premises if necessary to enable the Company to remedy any breaches of this Agreement.  If the Company is unable to reasonably remedy any breach of this Agreement and such breach substantially impairs your use of the computer(s) covered under this Agreement, you may terminate this Agreement upon written notice to the Company.  In any such case, the Company's liability to you shall be limited as specified in Section 11.

7.3 Termination and/or Suspension by the Company.  If, as determined by the Company in its sole discretion: (a) you breach any provision of this Agreement or any license for Third Party Software; (b) your use of any of the Services is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to any of the Services, the Company's network, or the use and enjoyment of the Services by third parties; (c) the Company receives an order from a court to terminate the Services provided to you; (d) the Company for any reason ceases to offer any of the Services previously made available to you under this Agreement; or (e) you are abusing any of the Services, then, in any such case, the Company at its sole election may terminate this Agreement or suspend one or more of the Services immediately without notice.

7.4 Terminated Account.  The Company, in its sole discretion, may refuse to accept your request for service, renewal or re-subscription following a termination or suspension of your use of any of the Services.  If you terminate this Agreement other than in accordance with Section 7.2, you agree to pay to the Company a $150.00 cancellation fee inclusive of GST, which will be charged to your credit card.

8. SOFTWARE LICENSES AND THIRD PARTY SERVICES

8.1 The Services (and all copyright and other proprietary or intellectual property rights), all software, CDs, programs, documentation and other intellectual property which is owned by the Company and/or which the Company makes available or furnishes to you pursuant to this Agreement, via download, other media, or other delivery method, and/or in connection with the provision of the Services, and all other rights and derivative works related thereto are referred to as the "Licensed IP."  The Licensed IP may be accompanied by an end user license agreement from the Company.  Your use of the Licensed IP is governed by the terms of that license agreement and by this Agreement, where applicable.  You may not install or use any Licensed IP that is accompanied by or includes an end user license agreement unless you first agree to the terms and conditions of the end user license agreement.  With regard to any Licensed IP for which your acceptance of a separate license agreement is not required, the Company hereby grants to you one limited non-exclusive, non-transferable, non-sublicensable license to access and use the same, only during the term of this Agreement, solely for your own personal or internal business purposes with respect to the computer(s) and peripherals receiving the Services subject to this Agreement, and only as part of or for use with the Services and for no other purpose.  You agree not to copy, modify, publish, transmit, rent, license, re-sell, sublicense, transfer, trade, reverse engineer, decompile, attempt to derive source code or other intellectual property from the Company or allow others to use or benefit from any of the Licensed IP.  You acknowledge and agree that you are not granted any title or rights of ownership in any of the Licensed IP.  The Company reserves the right to update or change the Licensed IP from time to time and you agree to cooperate in performing such steps as may be necessary to install any updates or upgrades to the Licensed IP.  All rights not expressly granted to you pursuant to this Section 8.1 are expressly reserved by the Company and any third party licensors, providers and suppliers, as applicable.

8.2 You agree that the Licensed IP is confidential information of the Company or its third party licensors, providers or suppliers, and that you will not disclose the Licensed IP or any other confidential information of the Company to others or use the Licensed IP or any other confidential information except as expressly permitted herein.  The Licensed IP contains copyrighted material, trade secrets, patents, and proprietary information owned by the Company or its third party licensors, providers, or suppliers.  You agree not to remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of any of the Licensed IP.  You acknowledge that the license in Section 8.1 is not a sale of intellectual property and that the Company or its third party licensors, providers or suppliers will continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Licensed IP and related documentation, as well as any corrections, updates and upgrades.  Upon the expiration or termination of this Agreement, you must immediately return all Licensed IP to the Company. 

8.3 As part of the Services, the Company may sublicense to you or suggest the acquisition, installation and use of certain third party software (the "Third Party Software").  You acknowledge that any Third Party Software will be sublicensed to you by the Company or licensed to you by the respective owners or licensees of the Third Party Software.  You agree to be bound by and subject to the terms and conditions set forth by such owners or licensees before installing Third Party Software, regardless if the Company sublicenses to you or assists you in the acquisition, installation, and/or use of Third Party Software.  The Company has no rights to the Third Party Software and does not license Third Party Software to you except to the extent that the Company is a reseller or licensee of the Third Party Software.  The Company does not make any representation or warranty regarding the Third Party Software.

8.4 The Company will provide technical assistance and support for the Licensed IP in accordance with its then current policies, which the Company may change from time to time in its sole discretion.  To the extent that the Company provides technical assistance and support for any Third Party Software or equipment, you agree to comply with the terms and conditions under which you licensed such Third Party Software or purchased such equipment.  The Company makes no representation or warranty that it is an authorized service provider for any Third Party Software or for any equipment, and you acknowledge and agree that it is your sole responsibility to determine if you require additional rights for the Company to provide such support, and if so, to acquire such rights.  You acknowledge that support of Third Party Software or equipment by an unauthorized service provider may void any warranty made by the supplier of such Third Party Software or equipment.

9. INDEPENDENT CONTRACTOR.

You acknowledge that the Company is an independent contractor and neither the Company nor any of its agents, employees or affiliates is or shall be deemed employed by you.  The Company reserves the right to determine the method, manner and means by which the Services will be performed.  The Company and its agents, employees and affiliates are not required to perform the Services for you during any particular hour of the day or night, and the time spent accessing your computer is at the Company's discretion, subject to your access times and security requirements.  You further acknowledge that the Company is not required to devote its full time or the full time of any of its agents, employees or affiliates to the performance of the Services, and you acknowledge that the Company has other clients and that it offers services to the general public.  The order and sequence in which the Services are to be performed shall be under the control of the Company and its agents, employees and affiliates, and not under your control.

10. NONHIRING COVENANT.

You acknowledge that the Company has a legitimate interest in preserving its client base and you hereby agree that, for the duration of this Agreement and any renewal periods, and for a period of 12 months following the termination of this Agreement, you will not, except without the Company's written approval: (a) solicit services from or offer employment to any of the Company's agents, employees or affiliates or any third parties through whom the Company provides any of the Services; or (b) accept employment relating to computer services, programming, troubleshooting, or systems design from the Company's agents, employees or affiliates, including without limitation the agents, employees and affiliates with whom you have had contact within the 12-month period immediately prior to the termination of this Agreement.

11. LIMITATIONS AND RISKS

11.1 IN NO EVENT SHALL THE COMPANY OR ITS AGENTS, EMPLOYEES, AFFILIATES, DIRECTORS OR OFFICERS OR ANY THIRD PARTY SERVICE PROVIDERS HAVE ANY LIABILITY TO YOU OR ANY OTHER THIRD PARTY, AND YOU AGREE TO RELEASE AND HOLD THE COMPANY AND ITS AGENTS, EMPLOYEES, AFFILIATES, DIRECTORS AND OFFICERS AND ANY THIRD PARTY SERVICE PROVIDERS HARMLESS FROM, ANY LIABILITY ARISING FROM (A) ANY DELAYS IN THE PERFORMANCE OF THE SERVICES; (B) ANY THIRD PARTY SOFTWARE; (C) THE PERFORMANCE OF THE SERVICES, EXCEPT AND ONLY TO THE EXTENT THAT THE COMPANY IS GROSSLY NEGLIGENT IN PERFORMING THE SERVICES; OR (D) CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.  SOME STATE STATUTES MAY APPLY RESTRICTIONS REGARDING LIMITATIONS ON LIABILITY.  THE SOLE AND MAXIMUM LIABILITY OF THE COMPANY AND ITS AGENTS, EMPLOYEES, AFFILIATES, DIRECTORS, OFFICERS AND THIRD PARTY SERVICE PROVIDERS, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS WHATSOEVER, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT THAT YOU PAID FOR THE SERVICES WITHIN THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM IN WHICH WE ARE LIABLE TO YOU FOR SUCH CLAIM.  IN THE EVENT THIS LIMITATION OF DAMAGES IS HELD UNENFORCEABLE, THEN THE PARTIES AGREE THAT BY REASON OF THE DIFFICULTY IN FORESEEING ALL POSSIBLE DAMAGES WHICH YOU MAY INCUR, THE COMPANY'S (AND ITS AGENTS, EMPLOYEES, AFFILIATES, DIRECTORS, OFFICERS AND THIRD PARTY SERVICE PROVIDER'S) LIABILITY TO YOU SHALL BE LIMITED TO THE SUM OF $500.00 AS LIQUIDATED DAMAGES AND NOT AS A PENALTY OR THE COST OF REMEDYING THE DAMAGE, WHICHEVER IS LESS.  YOU ACKNOWLEDGE THAT THE COMPANY HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT AND THAT THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.  THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF PORTIONS OF THIS AGREEMENT ARE FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.

11.2. You agree that your use of the Services is your sole responsibility and is solely at your own risk, and you agree that you will comply with all applicable local, state, national and international laws and regulations.  You acknowledge and agree that the Internet, over which many of the Services are delivered, is not owned, operated or managed by, or in any way affiliated with the Company and you agree that the Company is not responsible for and has no control over the information, content or other materials, some of which may be offensive, malicious or destructive in nature, which may be accessed on the Internet through use of the Services.  You acknowledge and agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information that you transmit or receive over the Internet, whether in connection with the Company's provision of the Services or otherwise.  The Company is not responsible for invalid destinations, transmission errors, or corruption or security of your data.  You further acknowledge and agree that the Company does not own or control all of the various facilities and communications lines through which Services may be provided and that the Company does not guarantee access to or through websites, servers or other facilities on or connected to the Internet, whether or not such websites, servers or facilities are owned or controlled by the Company.  You acknowledge and agree that remotely accessing your computer may expose your computer and the data contained on your computer to certain security risks and that you, and not the Company, shall not be responsible for such security risks.  You acknowledge that due to the nature of the Services being performed, you are exposed to some potential risk of damage or loss including, without limitation, damage to your computer hardware, cabling, hubs, routers, switches, peripherals, accessories, furniture, home, and office, as well as potential risk of damage, corruption, loss of business or time, loss of computer software, applications, data, and data storage media.  You acknowledge that it is highly recommended that you take proper and adequate measures to preserve, protect and safeguard critical data by backing up such data in appropriate ways prior to any Services being performed by the Company.  Unless specifically requested and provided to you as a paid Service by the Company, you acknowledge and agree that you are exclusively responsible for providing all backup, archiving, and protective storage as well as restoration, if required, of your data. 

12. WARRANTY LIMITATIONS.

THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND YOUR USE OF THE SERVICES IS AT YOUR OWN RISK.  THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO PERFORM AND MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICES.  HOWEVER, THE COMPANY PROVIDES NO WARRANTIES WHATSOEVER AND THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.  THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.  THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ACCURACY, RELIABILITY, SATISFACTION OR OTHERWISE, AND THE COMPANY DOES NOT GUARANTEE RESOLUTION OF ANY PROBLEM.  YOU ASSUME SOLE RESPONSIBILITY FOR YOUR USE OF THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS.  THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE LINE RATE, ACCESS OR AVAILABILITY OF THE SERVICES. 

13. BACKUP SERVICES.

If you purchase QK Backup, you acknowledge that the security key given to you during the backup setup process is your unique identifier that unlocks the encryption code for your data.  For security purposes, the Company does not retain a copy of your security key.  Therefore, you agree to keep this security key stored in a place separate from your computer system to keep it safe and retrievable when you need to access your backup data.  You also consent to and acknowledge that the Company will monitor your data storage usage.

14. DISPUTE RESOLUTION.

Prior to commencing litigation as to any claim or dispute (a "dispute") arising under this Agreement, each party agrees to comply with the provisions of this Section 14.  The party alleging a dispute shall promptly advise the other party of such dispute in a writing which describes in reasonable detail the nature thereof (the "Dispute Notice").  The parties shall then exercise good faith efforts to resolve such dispute.  If the parties themselves are unable to resolve the dispute within 15 days following the delivery of the Dispute Notice by the party alleging the dispute to the other party (the "Dispute Date"), the parties shall then jointly select a mediator to conduct the mediation.  All mediation sessions shall be held in Melbourne, VIC or within the surrounding area or such other place as the parties may agree in writing, and all costs.  Not later than 20 days after the Dispute Date, each party shall select for itself a representative who shall have authority to bind such party and shall advise the other party of the name of such representative.  In such mediation, the mediator shall review the matter with each party to assist each party to understand the strengths and weaknesses of each position and to attempt to reach a compromise for settlement of the matter.  If (a) the parties are unable to agree upon the mediator to use within 25 days after the Dispute Date, (b) mediation is not undertaken in a meaningful way within 30 days after the Dispute Date, or (c) any unresolved dispute remains after mediation, then either party may commence a civil action regarding such dispute.  The parties agree that any civil action thereby commenced shall be brought in a state or federal court of competent jurisdiction in Victoria, Australia, and that the decision of such court(s) shall be final.  The parties hereby submit to the jurisdiction of such court(s) and waive any objection that they may now or hereafter have to the venue of any such action or proceeding in any such court(s) or that such action or proceeding was brought in an inconvenient forum and agree not to plead or claim the same.  In any mediation, the fees and costs of the mediator shall be borne equally by the parties to the mediation and shall be payable in advance or upon invoice from the mediator, as applicable, and each party shall bear the fees and costs of the party's own legal counsel and witnesses.

15. COMPLETE CONTRACT.

This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof, and integrates all prior understandings and agreements between the parties with respect thereto, whether oral or written.  You agree to accept the terms and conditions set forth in this Agreement to the exclusion of any standard terms you may customarily have for the purchase of services.  No other agreement, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of the Company or any of its agents, employees and affiliates, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter of this Agreement.  You acknowledge that you are entering into this Agreement based solely on the basis of the representations contained herein. Further, should any provisions of this Agreement be held void, voidable, or unenforceable for any reason, all remaining provisions of this Agreement shall remain in full force and effect.  To the extent the scope of any provision is too broad in any respect to permit enforcement, the parties hereto agree that such scope may be judicially modified accordingly.

16. INDEMNIFICATION.

You agree to defend, indemnify and hold harmless the Company and its directors, stockholders, officers, agents and employees from and against all liabilities, costs and expenses, including reasonable attorney's fees, related to or arising from: (a) any violation of applicable laws, regulations or this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Services or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Services); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Services); (d) any and all claims for damage or injury to persons or property or for loss of life or limb whereby you have been found liable to any third party under any product liability, tort liability or similar action that may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the intentional negligence or wilful misconduct of the Company; or (e) claims for infringement of any intellectual property rights arising from the use of the Services, Third Party Software, or the Internet, except with respect to the Licensed IP.

17. APPLICABLE LAW AND TAXES.

This Agreement shall be governed by and construed in accordance with the laws of the State of NSW, disregarding any rules relating to the choice or conflict of laws.  Any and all taxes, except income taxes, imposed or assessed by reason of this Agreement or its performance, including but not limited to sales or use taxes, shall be paid by you.

18. ASSIGNMENT.

You may not assign your rights or obligations under this Agreement without the Company's prior written consent.  Subject to this limitation, this Agreement shall be binding upon and inure to the benefit of the heirs, successors, and assigns of the parties hereto.

19. FORCE MAJEURE.

The Company shall be excused for the period of any delay in the performance of any obligation under this Agreement when prevented from doing so by a cause reasonably beyond the Company's control, such as labour disputes, traffic congestion, delivery failures, product shortages, civil commotion, war, governmental regulations or controls, government action, fire or other casualty, weather, or acts of God.

20. WAIVER.

The waiver by either party of a breach or a default by the other party shall not be construed as a waiver of any succeeding breach, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege operate as a waiver of any right, power or privilege by such party.  No waiver, consent, modification, alteration, addition, or change of terms of this Agreement shall bind either party unless in writing and signed by an authorized signatory of the party against whom enforcement is sought, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.  The Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.

21. SEVERABILITY.

If any provision of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not render the entire Agreement invalid.  Rather, the Agreement shall be construed as if not containing the particular invalid or unenforceable provision, and the rights and obligations of each party shall be construed and enforced accordingly

22. NOTICES.

Except as explicitly stated otherwise, any notice to QK shall be given by email to: service@qk.com.au.  Any notice to you shall be sent to the email address that you provide to QK during the registration process.  Notice shall be deemed given 24 hours after an email is sent, unless the sending party is notified that the email address is invalid.  Alternatively, QK may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided by you to QK during the registration process.  In such case, notice shall be deemed given 3 days after the date of mailing.  You may also send notices to QK by certified mail, postage prepaid and return receipt requested, to the following address: QK, 52-58 Chetwynd St, North Melbourne VIC 3003 Australia.  Alternatively, either party may give notice by overnight courier mail through a nationally recognized courier service, which notice will be effective when actually received.