IMPORTANT— READ CAREFULLY BEFORE INSTALLING, DOWNLOADING, ACCESSING, LOGIN OR USE OF THIS SERVICE.
This Limited Use End User License Agreement (“EULA”) is a legal agreement between the entity signing below as the “Customer” and Avasant, LLC, or one of its subsidiaries or affiliated entities (“Avasant” or the “Avasant”) concerning various subscription software as a service solutions and related reports, publications, assessments, and other features, outputs and deliverables comprising Avasant’s proprietary research, analytics, assessment and such other products or service offerings on the applicable purchase order form to which this EULA is linked or attached (hereainafter the “Service(s)”). This EULA applies to any customer of Avasant Services provided through Avasant’s web sites (“Customer”) and to all such Customer’s authorized End Users (as defined below). Customer’s (and each End User’s) right to access and use the Service(s) is subject to the Customer’s acceptance of the terms and conditions set forth in this EULA.
Customer and each End User acknowledge and agree that access to the Service(s) is solely based on Customer’s acceptance of this EULA, and End User’s status as an authorized End User of the Customer. For the purposes of this EULA, an “End User” is (a) any employee, contractor or agent of Customer that has been authorized by Customer to use the Service(s), (b) any corporate affiliate or franchisee of the Customer, and approved employees or contractors of such affiliate or franchisee, or (c) a Customer approved third party (and approved employees or contractors of such third party), with whom Customer has an agreement in which such third party agrees to meet confidentiality and nondisclosure standards that are no less restrictive than Customer itself observes; and, provided further, that Avasant approves such End User’s access and use of the Service(s). “Customers” will include individuals, corporations, non-profit, or public sector entities.
Any termination of this EULA will immediately terminate the Customer’s and End Users’ rights to use the Service(s). Any termination of an End User’s contractual or employment relationship with the Customer will immediately terminate such End User’s rights to access and use the Service(s). Any violation of the terms and conditions of this EULA will entitle Avasant to suspend or terminate this EULA or an End User’s right to use the Service(s).
The Service(s) includes all component parts, software and hardware driven platforms, the associated media, any printed materials, reports, surveys, and other written output any updates, and any “online” or electronic documentation, as applicable. By accessing, installing, or otherwise using the Service(s), Customer and each End User agree to be bound by the terms of this EULA. If Customer or an End User does not agree to the terms hereof, Avasant is unwilling to make the Service(s) available for use. In such event, Customer or the End User may not access, use, download, transfer, reverse engineer, copy or make any commercial use of the Service(s). WRITTEN ASSENT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS EULA.
- License Grant.
- Subject to Customer’s (and each End User’s) acceptance of this EULA, Avasant hereby grants to Customer a limited, revocable non-sublicensable, non-exclusive, non-transferable right to access, use and or receive the benefit of the Service(s) as made accessible for the following limited purposes:
- To review materials and other content supplied or derived from the Services; provided that all copyright and trademark notices and legends remain intact and that do not violate usage guidelines or trademark and copyrights in such reports;
- To provide access to authorized End Users (subject to Avasant approval) for the same.
No excerpts, copies, download,s edits, repurposing or other use of the reports or other content derived from the Service(s) may be done without attribution to Avasant and Avasant’s prior written consent. For clarity, no third party sublicensing, marketing, distribution, resale, or other commercial exploitation rights to the Service(s) or its outputs are granted herein. Any such uses in violation of this EULA will immediately terminate the license set forth herein.
- Where applicable, Customer will provide registration information, login and activate an account to enable Customer, and each End User, to use the Service(s) pursuant to the terms of this EULA. Documentation shall include, but not be limited to, any printed materials, “online” or electronic data provided by or obtained from Avasant with regard to the Service(s) (“Documentation”). Customer and End Users may not:
- Provide passwords for access to the service two more than the maximum number of permitted End Users;
- Share or loan passwords to obtain access to the Service(s); or
- Distribute, post or publish articles, reports, or other outputs of the Service(s) (or excerpts thereof) except as authorized by Avasant in writing.
- Installation and Use. The Service(s) will be accessible through the Internet as hosted by Avasant on its owned or leased servers. Accordingly, it may be made available for access by other computers, workstations, personal digital assistants, pagers, “smart phones,” or such other electronic device for which the Service(s) was designed (“Customer Devices”) subject to Avasant’s standard access controls.
- The term of this EULA will run for a period of one (1) year from the “Effective Date” identified on the applicable purchase order form, subject to renewal upon approval by Avasant. Upon any termination of the Agreement or other termination of this EULA, Customer’s rights (and the rights of any End User) to use the Service(s) will terminate.
- Customer and its End Users are responsible for strict compliance with any and all of the terms and conditions of this EULA.
- This EULA will be subject to automatic termination by Avasant if Customer or any End User fails to comply with any of the limitations or other requirements described herein, and such termination shall be in addition to and not in lieu of any criminal, civil or other remedies available to Avasant. When this EULA terminates, Customer and all End Users must immediately cease using the Service(s). Avasant further reserves the right to immediately cancel access to the Service(s). Customer may terminate this EULA at any point by providing written notice; provided, however, that Avasant will be entitled to invoice for any remaining fees owed for the duration of the then-current term.
- Modification and Discontinuance. The terms and conditions of this EULA may be modified and updated by Avasant in its discretion. Revisions will become effective upon posting to Avasant’s web site. The Service(s) are subject to change, revision, modification or discontinuance without notice and without any obligation to Customer or any authorized End Users. Support and Maintenance services, if applicable and offered, are available at an additional cost under a separate agreement.
- Ownership Rights.
- Ownership of Service. The Service(s) and Documentation are protected by United States and international copyright laws, trademark laws and other intellectual property laws, and international treaty provisions. Avasant and its third party licensors, if any, retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (a) the Service(s), including, but not limited to, all copies, versions, customizations, compilations and derivative works thereof (by whomever produced) and all related Documentation; (b) the Avasant trademarks, service marks, trade names, icons and logos; (c) any and all copyright rights, patent rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing; and (d) all Confidential Information (as defined in herein). Customer acknowledges that possession, installation, or use of the Service(s) does not transfer to it (or any End User) any ownership, title, or registrable interest of any kind to the intellectual property in the Service(s), and that Customer will not acquire any rights to the Service(s) except as expressly set forth in this EULA.
- Submissions/Content. Should Customer (or End Users) decide to submit any materials to Avasant via electronic mail, through or to Avasant website(s), or otherwise, whether as feedback, data, surveys, questions, comments, ideas, concepts, techniques, suggestions or the like, Customer (and each such End Users) agree that Avasant may collect and use such content. In addition, Customer agrees that by using the Service(s), it acknowledges and agrees that Avasant may collect, track or monitor data that is actively or passively collected from Customer’s and its End Users’ use of the Service(s). Customer hereby grants to Avasant and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, commercialize, display and perform such submissions and other content to the maximum extent permitted under applicable law. Avasant’s use of content will be in accordance with in accordance with its applicable data collection, use and storage policies (and in accordance with applicable law). In order to provide a balanced and neutral perspective on the market, Avasant has presently elected not to review other consulting firms through RadarView™.
- Restrictions. Customer and its End Users may not rent, lease, sublicense, loan, sell, distribute, market, or commercialize or otherwise exploit any portion of the Service(s) or its components. Customer may only install and use the Service(s) on Customer Devices which are under Customer’s exclusive control. Customer may not transfer any or all of the rights granted under this EULA. To the maximum extent this restriction is permitted under applicable law, Customer may not rename files of, modify, translate, localize, decompile, disassemble, decrypt, reverse engineer, attempt to derive source code from, remove any proprietary notices from, or create derivative works based upon the Service(s), in whole or in part. Customer may not duplicate or copy any portion of the Service(s) or Documentation, unless otherwise set forth herein. Customer may not remove any proprietary notices or labels on the Service(s). All rights not expressly set forth hereunder are reserved by Avasant. Avasant reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this EULA.
- Warranty and Disclaimer.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE(S) (AND ACCOMPANYING DOCUMENTATION) ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING PROVISIONS, CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR SELECTING THE SERVICE TO ACHIEVE ITS INTENDED RESULTS, AND SOLE RESPONSIBILITY FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SERVICE(S). WITHOUT LIMITING THE FOREGOING PROVISIONS, AVASANT MAKES NO WARRANTY THAT THE SERVICE(S) WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SERVICE(S) WILL SATISFY SPECIFIC REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AVASANT DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF LACK OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, AND LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SERVICE AND ASSOCIATED DOCUMENTATION. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SERVICE(S). THE ENTIRE RISK OF THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE SERVICE(S), IF ANY, REMAINS SOLELY WITH CUSTOMER. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Indemnification. Customer agrees to defend, indemnify and hold harmless Avasant and its directors, officers, employees, affiliates, sub-licensees, and agents from and against all claims, defense costs (including reasonable expert and attorneys’ fees), judgments and other expenses arising out of or on account of any negligent act, omission, or willful misconduct by Customer or its End Users with respect to the installation or use of the Service(s), or failure to comply with the terms and conditions of this EULA.
- Data. CUSTOMER ACKNOWLEDGES THAT ANY DATA ENTRY, CONVERSION OR STORAGE IS SUBJECT TO THE LIKELIHOOD OF HUMAN AND MACHINE ERRORS, MALICIOUS MANIPULATION, OMISSIONS, DELAYS, AND LOSSES, INCLUDING, BUT NOT LIMITED TO, INADVERTENT LOSS OF DATA OR DAMAGE TO HARDWARE OR OTHER MEDIA THAT MAY RESULT IN LOSS OR DAMAGE. AVASANT SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. CUSTOMER IS RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO LIMIT THE IMPACT OF SUCH PROBLEMS, INCLUDING BACKING UP DATA, AND ADOPTING PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND OMISSIONS. CUSTOMER IS ALSO RESPONSIBLE FOR COMPLYING WITH ALL LOCAL, STATE, AND FEDERAL LAWS PERTAINING TO THE USE AND DISCLOSURE OF ANY DATA.
- Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL AVASANT BE LIABLE TO CUSTOMER, AN END USER, TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, FOR PERSONAL INJURY, LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING A DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE (WHETHER ACTIVE OR PASSIVE), AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SERVICE(S), OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE, AND GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY BY AVASANT, AND EVEN IF AVASANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AVASANT BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF US $5000. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Entire Agreement. This EULA, inclusive of any appendices and other documents incorporated herein by reference, constitutes the Parties’ entire agreement and understanding and supersedes all prior communications, understandings, representations, negotiations and discussions, written or oral, between the parties regarding the subject matter hereof. This EULA shall prevail over any additional, conflicting, or inconsistent terms. This Agreement shall inure to the benefit of successors, executors, and assigns.
- Severability. If any provision of this EULA is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby.
- Export Controls. Customer acknowledges that the Service(s) may be subject to export controls imposed by U.S. laws and regulations. During the term of this EULA, Customer agrees to comply with the U.S. Foreign Corrupt Practices Act and with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or foreign agency or authority, and not to knowingly export, re-export, download, or allow the export, re-export or downloading of the Service(s) or Documentation and any underlying information or technology in violation of any such restrictions, laws or regulations to any country (or to any national of such countries) specified in embargo provisions and other applicable provisions of U.S. Export Administration Regulations (or any successor regulations or supplement).
- Confidentiality. Customer (on behalf of itself and its End Users) agrees that the Service(s), including, but not limited to, all source and object code components, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, application programming interfaces and protocols, and the Documentation (collectively the “Confidential Information”) are trade secrets and proprietary information of Avasant and are owned by Avasant or, where applicable, its third-party licensors. Customer agrees to retain all Confidential Information in strict confidence at least with the same amount of diligence that it exercises in preserving the secrecy of its most-valuable information, but in no event less than reasonable diligence. Customer agrees to: (a) only disclose Confidential Information to its employees and agents to the extent required to use the Service(s) under the terms of this EULA and not to disclose or disseminate the Confidential Information to any third party without the prior written consent of Avasant, (b) use the Confidential Information solely for its benefit as provided for herein and not to allow any third party to benefit from the Confidential Information, and (c) bind its End Users, employees and agents, by terms no less restrictive than those set forth herein, to maintain the confidentiality of such Confidential Information, and not use or disclose such information except as permitted under this EULA. Notwithstanding the disclosure of any Confidential Information for any reason, such Confidential Information shall continue to be owned by Avasant or its licensors.
- Miscellaneous. This EULA is exclusively governed by the laws of the United States and the State of California without reference to conflicts of law principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by a duly authorized representative of Avasant. Customer hereby acknowledges a breach of this EULA would cause irreparable harm and significant injury to Avasant that may be difficult to ascertain and that a remedy at law would be inadequate. Customer agrees that Avasant shall have the right to seek and obtain immediate injunctive relief to enforce the obligations under this EULA in addition to any other rights and remedies it may have. The controlling language of this EULA is English.
- Content Disclaimer.
- Customer, and not Avasant, is entirely responsible for all Customer (and End User) content that is uploaded, posted or otherwise transmitted via the Avasant web site. Such Customer content may include, but shall not be limited to, the following: information, data, text, music, sound, photographs, graphics, video, messages, trade-names, trademarks, service names and other proprietary marks or other materials that Customer or End Users each upload, post or otherwise transmit via the Avasant’s web site(s). Additionally, such content may include responses to surveys, comment forms, intake or sign-up forms, customer satisfaction surveys, product evaluation forms.
- Acceptance of Terms. Customer will indicate its formal acceptance of the terms by checking the “I ACCCEPT” box provided.
- Pricing. This limited use license is provided free of charge. Should Customer desire to obtain rights to market, repurpose or make commercial or other use beyond the scope of the limited license set forth in this EULA herein, Customer may enter into a separate licensing arrangement under standard Avasant terms and conditions, including pricing and payment terms.
- Avasant Customer Contact. If Customer has any questions concerning these terms and conditions, or would like to contact Avasant for any other reason, please call 310-643-3030, or write to us at: Avasant, LLC 1960 E. Grand Ave., Ste. 1050, El Segundo, CA 90245.