Last Update: July 30, 2024
1. Terms of Service
Terms of Service by Quack AI Co. (the "Quack")for the use of the Quack services by you ("You" or "Customer").Please read these terms of use ("Terms") carefully. They constitute legally binding contractual content between you and Quack. If you do not agree with these Terms, please do not subscribe to and/or download and use the Quack.
2. Scope
These terms of service by Quack for the use of theQuack 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. TheQuack 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 thisAgreement, 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 AdditionalAgreement 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.quack.ai The 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 validate 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 theTool 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
The Quack may include links to products, services ,features, and/or functionality operated by other third parties (collectively "Third Party Services"). For example, we use Third Party Service Mixapnel to provide product analytics, and we use Auth0 for user authentication in connection with sign-ups and logins. Third Party Services which are made available through our Services are made and offered directly by the applicable third party. When you pursue or purchase any such product or service, you acknowledge that you are contracting directly with such third party and not with us. Applicable terms. Your interaction with, or participation in promotions of, third parties found on or through the Services, including payment and delivery of goods or services (except as otherwise specified) and any other terms, are solely between you and such third party and are subject to such third party’s terms and conditions. You are advised to read any ThirdParty Services’ terms, including terms of use/service and privacy policy ,carefully as they constitute an agreement between you and the third party. Liability.You acknowledge and agree that we are not responsible or liable for the ThirdParty Services’ terms, products, content, or actions, including their failure to comply with their terms of use/service or privacy policy. Third parties act beyond our reasonable control and we shall not be held liable for any damages caused by an action or omission attributable to them. You hereby agree that we shall not be liable for any loss or damages of any kind incurred by you as the result of any of your dealings with third party service providers or advertisers available through our Services.
6. Registration
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 PropertyRights 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 orSoftware 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, logo sand other identifying marks included in or associated with the Software andServices 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.
8. Warranty
The Software made available to Customer shall correspond in all material aspects to the product description provided on theWebsite (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 support@thequack.ai and include sufficient details relating to the defect in such reporting.
9. Content; Rights Grant
You and End Users may provide input to the Services (“Input”)and receive output from the Services based on the Input (“Output”). We call Input and Output together “Customer Content.” As between you and the Quack, and to the extent permitted by applicable law, you (a) retain all ownership rights in Input and (b) own all Output. We hereby assign to you all our right, title, and interest, if any, in and to Output.We will only use Customer Content as necessary to provide you with the Services, comply with applicable law, and enforce Quack policies. We will not use Customer Content to develop or improve the Services.You are responsible for all Input and represent and warrant that you have all rights, licenses, and permissions required to provideInput to the Services. You are solely responsible for all use of the Outputs and evaluating the Output for accuracy and appropriateness for your use case ,including by utilizing human review as appropriate. You represent and warrant that You, and Your 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, trade marks ,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.), TheQuack is legally entitled to block this profile temporarily or permanently, TheQuack will inform the Customer of the third party's complaint, allow theCustomer (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 theseToS, in particular, not offer the Services to unauthorized third parties or sell, sub-license, lease, transfer or otherwise commercially exploit theSoftware;- interfere with or disrupt the Services or servers or networks;-remove or amend any proprietary notices or other ownership information from theService;- collect or harvest any personally identifiable information, including account names, from the Service;- decompile, reverse engineer, disassemble or hack the Software or any part of the Service or defeat or overcome any of TheQuack'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 theSoftware, 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 TheQuack 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 un-authorised 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 TheQuack, 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 adminAccount 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 and Indemnification
Except for the Limited Warranty in Section 8, and to the maximum extent permitted by applicable law, Quack provides the Services andSoftware 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 merchant ability ,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. We agree to defend and indemnify you for any damages finally awarded by a court of competent jurisdiction and any settlement amounts payable to a third party arising out of a third party claim alleging that theServices and Software (including training data we use to train a model that powers the Services) infringe any third party intellectual property right. This excludes claims to the extent arising from: (a) combination of any Services with products, services, or software not provided by us or on our behalf, (b)fine-tuning, customization, or modification of the Services by any party other than us, (c) any data you provide to us, or (d) your failure to comply with this Agreement or laws, regulations, or industry standards applicable to you.If we reasonably believes that all or any portion of the Services is likely to become the subject of any infringement claim, we (x) will procure, at our expense, the right for you to continue using the Services in accordance with this Agreement, (y) will replace or modify the allegedly infringing Service so it is non-infringing, or (z), if (x) and (y) are not commercially practicable ,we may, in our sole discretion, terminate this Agreement upon written notice to you and refund any prepaid amounts for unused Services. You will promptly comply with all reasonable instructions we provide you with respect to (x)through (y) above, including any instruction to replace, modify, or cease use of an impacted Service.You agree to indemnify, defend, and hold us and our affiliates and licensors harmless against any liabilities, damages, and costs(including reasonable attorneys’ fees) payable to a third party arising out of a third-party claim related to (a) use of the Services in violation of this Agreement (including violation of these Terms), or (b) Input.Indemnification Procedure. A party seeking indemnity will provide the indemnifying party with prompt written notice upon becoming aware of any claim, reasonable cooperation in the defense of or investigation of the claim and allow the indemnifying party sole control of defense and settlement of the claim, provided that the party seeking indemnity is entitled to participate in its own defense at its sole expense. The indemnifying party cannot enter into any settlement or compromise of any claim without prior written consent of the other party, which will not be unreasonably with held ,except that the indemnifying party may without consent enter into any settlement of a claim that resolves the claim without liability to the other party, impairment to any of the other party’s rights, or requiring the other party to make any admission of liability.
THE REMEDIES IN THIS SECTION 14 ARE THE SOLE ANDEXCLUSIVE REMEDIES FOR ANY THIRD-PARTY CLAIM THAT THE SERVICES OR CUSTOMERCONTENT INFRINGES INTELLECTUAL PROPERTY RIGHTS.
Except for (i) a party’s gross negligence or willful misconduct, (ii) your breach of Section 11 (Prohibited Use), (iii)either party’s breach of its confidentiality obligations under Section 4 (Confidentiality),or (iv) a party’s indemnification obligations under this Agreement, neither you nor Quack or our respective affiliates or licensors will be liable under thisAgreement for any indirect, punitive, incidental, special, consequential, or exemplary damages (including lost profits) even if that party has been advised of the possibility of those damages.Except for (i) a party’s gross negligence or willful misconduct or (ii) a party’s indemnification obligations under this Agreement ,each party’s total liability under the Agreement will not exceed the total amount you have paid to us in the twelve (12) months immediately prior to the event giving rise to liability. The foregoing limitations will apply despite any failure of essential purpose of any limited remedy and to the maximum extent permitted under applicable law.
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 deemedin 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 Quackmay 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.
18. Confidentiality
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 allConfidential 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 theConfidential 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. 20.AIThis 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 theCustomer (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 theWebsite 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.
23. Severability
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 byThe Quack.
26. Assignment
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.
27. Interpretation
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, theseTerms 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.