Terms of Service
1. Definitions. As used in this Agreement, the following defined terms have the meanings indicated below.
“Affiliate(s)” as applied to any particular entity, means those entities, businesses, facilities, and enterprises, that are controlled by, controlling, or under common control with such entity, including, without limitation, all parent corporations and their respective subsidiaries and affiliates, partnerships, together with any and all entities and businesses to which any of the above described entities provide management services or purchasing services for Customer. “Control” as used herein means control through ownership of more than a majority of shares of stock eligible to vote for members of the Board of Directors, or control by contract.
“Effective Date” means the date on which Customer clicked the "ACCEPT" option and submitted the online registration form.
“Named User” means a natural person authorized by Customer to use the Service.
“Order” means the electronic or paper order for the Service submitted by Customer and accepted by Analyst Admin.
“Service Period” shall have the meaning ascribed to it by Section 6.a of this Agreement.
“Term” shall have the meaning ascribed to it by Section 6.a of this Agreement.
2. Service; Related Terms.
a. Service. Subject to the terms and conditions of this Agreement and contingent upon payment by Customer of the fees and charges established by the Order, Analyst Admin during the Term will provide Customer’s Named Users access to and use of the Software via the Internet, in each case solely for internal business purposes of Customer and its Affiliates. Customer may increase the maximum number of Named Users by submitting a supplemental Order at any time during the Term. Customer may decrease the maximum number of Named Users by submitting notice to Analyst Admin to take effect at the end of the then-current Service Term.
b. Limitations and Restrictions. Customer shall not, and shall not permit any of its employees or independent contractors to, (i) change, modify or otherwise alter the Software, (ii) use the Service or Software for the benefit of any party other than Customer or for any purpose other than as expressly authorized by this Agreement, (iii) use the Service or Software to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights, (iv) use the Service or Software to store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (v) establish or attempt to use a single Log-In (as defined below) to establish more than one session in the Service at any given time, or (vi) misuse or abuse the Service, or interfere with or disrupt the integrity or performance of the Service or the data contained therein. In addition, Customer shall adhere to such terms of service and other conditions as Analyst Admin may specify from time to time, and to any limitations, including limitations imposed on the number of Named Users granted access to the Software, imposed by Order.
c. Changes to Agreement Terms. Analyst Admin, subject to the remainder of this Section 2.c, may provide Customer with notice proposing amendments to this Agreement from time to time during the Term. No such amendment will take effect unless and until Customer accepts the same in accordance with the instructions provided with Analyst Admin’s notice. If, however, Customer fails to accept any amendment within thirty (30) days of the date of Analyst Admin’s notice, Analyst Admin by notice given any time prior to Customer’s acceptance may terminate this Agreement, provided, that within thirty (30) days of such termination Analyst Admin will refund the subscription fees paid by Customer in respect of the then-current Service Period (pro rated for the number of days remaining in the Service Period).
3. Other Services.
Analyst Admin will provide Customer with any installation services, custom programming services and other services as and to the extent specified by an Order, in each case in exchange for the fees and charges specified by the Order.
4. Customer Obligations.
a. User IDs; Passwords. Analyst Admin will provide Customer with the log-in IDs, passwords and/or authorization keys (collectively, the "Log-Ins") Customer requires to employ the Service, and empower the Customer to establish and delete user identification codes and passwords, thereby determining the individuals who will serve as Named Users. As a material inducement for Analyst Admin to issue Customer the necessary Log-Ins and other materials as contemplated by this Section 4.a, Customer agrees that Customer shall be solely responsible for safeguarding the Log-Ins and otherwise complying with the password and security procedures Analyst Admin establishes from time to time. Customer shall promptly notify Analyst Admin if it becomes aware of any information suggesting that the security of its Log-Ins or the security procedures have been compromised in any way.
b. Technical Environment; PowerPoint®. Customer shall acquire, install and maintain throughout the Term the hardware, software, Internet access and systems meeting Analyst Admin’s specifications for use in conjunction with the Software. Without limiting the foregoing, Customer will install a properly licensed copy of PowerPoint® on each computer from which Named Users access or use the Software.
c. Data Preservation. Customer will create and preserve reasonable backup copies of its data and other business information and records, perform accuracy checks on a routine basis, and take such other precautions as may reasonably be required to detect and guard against possible malfunctions, loss of data, or unauthorized access to Customer’s computer systems.
5. Fees and Expenses; Payment.
a. Fees and Expenses. In consideration for the services provided hereunder, Customer shall pay Analyst Admin the subscription fees in advance, and all excess usage fees and other fees specified by the Order in arrears. If Customer during the Term increases the maximum number of Named Users, Customer shall pay in advance the applicable subscription fees prorated for the number of calendar days remaining in the then-current Service Period. All payments will be made in U.S. Dollars.
b. Automatic Payment. Except as the parties otherwise agree in advance in writing, Customer hereby authorizes Analyst Admin to charge all amounts accruing hereunder to any Customer credit card or debit card specified by an Order. If for any reason the applicable credit or debit card issuer declines the charge, Customer agrees to provide payment via an alternative credit or debit card promptly on Analyst Admin’s request.
c. Taxes. All amounts described herein or in any Order are exclusive of any applicable sales taxes, use taxes, value added taxes, goods and services taxes, and similar taxes and levies, excluding without limitation taxes based on Analyst Admin’s net income, all of which shall be the responsibility of Customer.
d. Late Payments. Any late payment by Customer under this section shall be subject to Analyst Admin’s costs of collection (including reasonable legal fees and costs) and shall bear interest at the rate of 1½% per month or part thereof or at the maximum rate permitted by law.
6. Term; Termination.
a. Term. The term of this Agreement will commence on the Effective Date and continue for the service period specified by the Order (the “Initial Service Period”). Thereafter, unless either party has provided notice of its intention to permit this Agreement to expire at the end of the then current service period, this Agreement will renew automatically for consecutive additional service periods equal to the duration of the Initial Service Period The Initial Service Period and each renewal period are referred to in this Agreement individually as a “Service Period” and collectively as the “Term.”." For Beta versions, the Term will continue until Customer is notified by Analyst Admin that the Beta has ended, at which point Customer must submit an Order and pay the specified subscription fees to continue using the Service.
b. Termination. Either party may terminate this Agreement by written notice if (i) the other party commits a material breach of this Agreement and fails to cure such breach within ten (10) days (in the case of nonpayment) or thirty (30) days (in the case of any other breach) after receipt of written notice of such breach or (ii) the other party shall be or becomes insolvent. Analyst Admin may terminate this Agreement pursuant to Section 2.c of this Agreement.
c. Effect of Termination or Expiration. Upon the expiration or termination of this Agreement by either party, all rights granted to Customer hereunder shall terminate and Customer shall cease using the Service, Software and Log-Ins. Neither the expiration nor termination of this Agreement shall (i) affect the parties’ respective payment obligations accruing prior to the effective date of termination, (ii) give rise to an obligation by Analyst Admin to refund any fees or charges previously paid, or (iii) affect the parties’ rights and obligations under Sections 7, 8, 9, 10, 11, 12, and 13 of this Agreement. Analyst Admin shall have no obligation to retain copies of any Customer data or materials following the effective date of expiration or termination.
7. Ownership and Proprietary Rights.
Analyst Admin, as between Analyst Admin and Customer, shall own all right, title and interest in and to the Software (including, without limitation, all updates and upgrades, improvements, or enhancements, and custom features and functions), and all patents, copyrights and other intellectual property rights therein, and Customer shall own all right, title and interest in and to the content of the presentations and other materials it uploads or creates using the Service. Analyst Admin shall retain the exclusive right to reproduce, publish, patent, copyright, sell, license, transfer and otherwise make use of the Software and all such inventions, discoveries, improvements, enhancements and methodologies, without accounting or attribution to Customer. Customer shall notify Analyst Admin of the unauthorized possession, use, or knowledge of any item supplied under this Agreement and of other information made available to Customer under this Agreement, by any person or organization not authorized by this Agreement to have such possession, use or knowledge immediately upon its obtaining of any actual knowledge or notice thereof.
a. "Confidential Information" for the purposes of this Agreement shall mean all tangible and intangible confidential and proprietary information and trade secrets (whether or not patentable or copyrightable), owned or possessed by either party (“Disclosing Party”) prior to the expiration or termination of this Agreement, including without limitation, each party’s and its affiliates’ and subsidiaries’ business/customer information, business practices, data processes, computer or software products or programs and all related documentation, cost and pricing data, know-how, marketing or business plans, analytical methods and procedures, hardware design, technology, financial information, or personnel or customer data, in each case that is disclosed to the other party (“Receiving Party”) or to which the Recipient gains access in connection with this Agreement. For the avoidance of doubt, all content uploaded to the Service by Customer shall, as between Customer and Analyst Admin, be the Confidential Information of Customer.
b. Exclusions. The obligations to preserve the confidential nature of any of the Confidential Information described herein shall not apply to information that (i) was previously known to the Receiving Party free of any obligation to keep it confidential; (ii) is or becomes generally known to the public or is obtainable from public sources other than as a result of an act or omission of the Receiving Party, (iii) is independently developed by or on behalf of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information or (iv) the Receiving Party is compelled by law, regulation or order to disclose the Confidential Information to a governmental agency or a court of law having proper jurisdiction. If disclosure is compelled pursuant to subsection (iv) of this section, the Receiving Party shall give the Disclosing Party reasonable notice to enable such party to try to protect the confidentiality of the Confidential Information.
(i) The Receiving Party agrees (i) to hold the Disclosing Party’s Confidential Information in strict confidence, and apply at least the standard of care used by the Receiving Party in protecting its own Confidential Information, and not to disclose such Confidential Information to any third party, and (ii) without the written permission of the Disclosing Party, not to use any Confidential Information of the Disclosing Party except as reasonably required to exercise its rights or perform its obligations under this Agreement.
(ii) The Receiving Party agrees to limit disclosure of the Disclosing Party’s Confidential Information to those employees who need to know the same to accomplish the purposes of this Agreement, and who have executed a written agreement not to disclose the Disclosing Party’s Confidential Information or use it in any manner other than in furtherance of this Agreement.
d. Injunctive Relief. The parties acknowledge in the event of a breach or threatened breach of this Section 8, the non-breaching party will be entitled to seek from any court of competent jurisdiction preliminary and permanent injunctive relief, which remedy will be cumulative and in addition to any other rights and remedies to which the non-breaching party may be entitled, without necessity of posting bond or other security. Each party acknowledges that its breach of any of the covenants set forth in this section would result in immediate and irreparable injury to the other party.
9. Limited Warranties.
(i)General. Subject to the provisions of Section 9.a(ii) of this Agreement, Analyst Admin warrants that, as of the Effective Date and for a period of ninety (90) days thereafter, the Service shall conform in all material respects to the applicable documentation. Analyst Admin’s services under this Agreement will be of professional quality and performed in a professional and workmanlike manner.
(ii)Beta and Trial Versions. Notwithstanding the provisions of Section 9.a(i), the provisions of this Section 9.a(ii) apply in place of Section 9.a(i) if and for so long as Analyst Admin makes the Software or Service available to Customer on a “beta test” or “trial” basis. In view of the evaluation nature of Service and Software, they are provided on an “as is”, “as available” basis, without warranty of any kind and without support or other services by Analyst Admin. CUSTOMER AGREES TO USE THE BETA TEST OR TRIAL SERVICE AND SOFTWARE STRICTLY FOR THE PURPOSES OF EVALUATION AND TESTING, AND THAT ITS RELIANCE ON THE AVAILABILITY OR ACCURACY OF THE BETA TEST OR TRIAL SOFTWARE SHALL BE ENTIRELY AT ITS OWN RISK. CUSTOMER ACKNOWLEDGES THAT BETA AND TRIAL VERSIONS OF THE SERVICE OR SOFTWARE MAY INCLUDE A “TIME OUT” FEATURE RENDERING THEM INOPERATIVE ON A PREDETERMINED DATE OR AFTER A PREDETERMINED PERIOD OF USE.
b. Disclaimer. With the sole exception of the warranties expressly set forth in this Agreement and to the greatest extent allowed by law, Analyst Admin DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND SOFTWARE, ANY DOCUMENTATION ASSOCIATED THEREWITH, AND ANY SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO THEIR CONDITION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. Analyst Admin HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR USE OR PURPOSE, AND ANY WARRANTY EXPRESS OR IMPLIED OF NONINFRINGEMENT. EXCEPT AS SET FORTH HEREIN, Analyst Admin FURTHER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE NATURE AND QUALITY OF ANY OTHER PERFORMANCE BY Analyst Admin HEREUNDER. ANY WRITTEN OR ORAL REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THIS AGREEMENT OR SIGNED BY AN OFFICER OF Analyst Admin SHALL NOT BE ENFORCEABLE BY CUSTOMER.
10. Limitation of Liability.
a. UNDER NO CIRCUMSTANCES WILL EITHER PARTY HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCURRED BY THE OTHER PARTY (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS OR DAMAGES TO BUSINESS REPUTATION), REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT A PARTY WAS ADVISED SUCH DAMAGES MIGHT ARISE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
b. WITHOUT LIMITING THE PROVISIONS OF SECTION 10.a, IN NO EVENT SHALL Analyst Admin BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES, DIRECT OR OTHERWISE, IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO Analyst Admin PURSUANT TO THIS AGREEMENT IN THE 6 MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. THIS LIMITATION IS CUMULATIVE; THE SUM OF MULTIPLE CLAIMS MAY NOT EXCEED THIS LIMIT. THE PROVISIONS OF THIS SECTION WILL APPLY IF LOSS, DAMAGE OR INJURY, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF Analyst Admin, ITS AGENTS OR EMPLOYEES. CUSTOMER WAIVES ALL OTHER REMEDIES THAT MIGHT OTHERWISE BE AVAILABLE UNDER THE LAWS OF ANY JURISDICTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
11. US Government End Users. click here to see terms of service specific to Government Agencies.
12. Dispute Resolution.
a. Informal Dispute Resolution. At the written request of either party, the parties will attempt to resolve any dispute arising under or relating to this Agreement through the informal means described in this Section 12.a. Each party will appoint a senior management representative. The representatives will furnish to each other all non-privileged information with respect to the dispute that the parties believe to be appropriate and germane. The representatives will use commercially reasonable efforts to resolve the dispute without the necessity of any formal proceeding. Formal proceedings for the resolution of the dispute may not be commenced until the earlier of: (i) the designated representatives conclude that resolution through continued negotiation does not appear likely; or (ii) thirty (30) days have passed since the initial request to negotiate the dispute was made; provided, however, that a party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief.
b. Governing Law. This Agreement will be governed by the laws of the State of California without regard to principles of conflict of laws. The parties hereto agree to submit all disputes related to this Agreement to the courts in the State of Delaware, and each party consents to the jurisdiction of such courts and waives any objection it may have with respect to venue. The United Nations Convention on Contracts for the International Sale of Goods (UNCCISG) does not apply to this Agreement.
c. Limitation of Actions. No proceeding, regardless of form, arising out of or related to this Agreement may be brought by either party after the second anniversary of the accrual of the cause of action, except that (i) proceedings related to violation of a party’s proprietary rights or any duty to protect Confidential Information may be brought at any time within the applicable statute of limitations, (ii) either party may enforce any indemnity obligation of the other party under this Agreement at any time, and (iii) proceedings for non-payment may be brought up to two (2) years after the date the last payment was due.
13. Miscellaneous Provisions.
a. No Third Party Beneficiaries. Nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than the parties to this Agreement.
b. Force Majeure. Neither party shall be responsible for delays or failure in performance resulting from acts beyond the control of such party, including without limitation, acts of God, strikes, lockouts, riots, acts of war, acts of terrorism, epidemics, fire, communication line failures, problems inherent in the use of the internet and electronic communications, power surges or failures, earthquakes or other disasters.
c. Entire Agreement. This Agreement constitutes the sole and complete agreement between the parties with regard to its subject matter, and may not be modified or amended except by a writing signed by both parties hereto. Neither party shall be subject to any provisions of any pre-printed purchase order, or acknowledgment, or other similar form.
d. Amendments; Waiver. Except as provided by Section 2.c of this Agreement, no amendment to this Agreement shall be effective unless it is in writing signed by duly authorized representatives of both parties. Both parties agree that the terms of this Agreement may not in any way be explained or supplemented by a prior performance, trade usage, or course of dealing between the parties, or by any prior performance between the parties pursuant to this Agreement or otherwise. No waiver of any breach of any provision of this Agreement by either party or the failure of either party to insist on the exact performance of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of performance of the same or any other provisions hereof, and no waiver shall be effective unless made in writing.
e. Severability. If any of the provisions of this Agreement shall be or become invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the remaining provisions of this Agreement. Instead, this entire Agreement shall be construed as though not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly.
f. Interpretation. This Agreement is being entered into among competent and experienced business persons and the terms and provisions of this Agreement shall be construed fairly as to the parties hereto and not in favor of or against either party, regardless of which party was generally responsible for the preparation of this Agreement. Customer acknowledges that the limited warranties, disclaimers and limitations of liability contained in this Agreement set forth an allocation of risk reflected in the fees and payments due hereunder. The section headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof. Each Order is incorporated herein to the same extent as if set forth in full herein.
g. Notices. All notices hereunder shall be sent by electronic mail to Analyst Admin at [email protected] or to Customer at the email address provided during the registration process, or at such other address as the applicable party may designate by notice provided in accordance with this section.