Terms of Use Agreement for Talmetrix Services

 

Terms of Use

Last Updated: 14 January, 2017

Talmetrix, Inc. (“Talmetrix“, “us“, or “we“) provides software products  and services (the “Services“) in connection with the Talmetrix website (the “Site“) located at www.talmetrix.com and applications (the “App”), located at app.talmetrix.com. This Terms of Use Agreement (“Agreement“), including the Talmetrix’s Privacy Policy which is hereby incorporated into this Agreement by reference, sets forth the legally binding terms for your use of the Services. By accessing and using the Services, you agree to comply with and be bound by this Agreement, whether you are visiting the Site (“Visitor“) or you are accessing the App or Services (“Administrator”) or you are a Survey Respondent (“Respondent”) (which means that you have account in the application). The term “User” refers to Visitors, Customers and Respondents.

Please read this Agreement carefully before using the Services or parts thereof. This Agreement is a legally binding agreement between you (the individual using the Services, and the company (if any) for which they are used) and Talmetrix.

Using Our Services

By using the Services, you represent and warrant that: (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are thirteen (13) years of age or older; and (d) your use of the Services does not violate any applicable law or regulation, or any other obligation (including contractual obligation) you might have towards third parties.

Your Account

In order to become an Administrator or Respondent, you must create or be assigned a Talmetrix account on the Site (“Account“) by either (i) providing a profile, which is created either by completing a form or by authenticating through the Site or (ii) an account is created for you by a related entity through the App, i.e., Talmetrix Customer.

You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the Account or password of another User at any time. You agree to notify us immediately if you suspect any unauthorized use of your Account or access to your password. You are solely responsible for any and all use of your Account.

Term and Termination

This Agreement shall remain in full force and effect (a) while you are using the Services, if you are a Visitor, and (b) for the duration of your subscription, if you are a User.  As a Visitor, you may delete your Account and end your subscription at any time, for any or no reason by sending your request to info@Talmetrix.com or unsubscribe from the services. Unless Talmetrix has terminated your Account, you can start a new subscription by registering for the Services. We may terminate your subscription for any or no reason at any time by ceasing to provide the Services to you. You understand that termination of this Agreement and the Account you have created with us may involve deletion of your Account information from our live databases. We will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.

Content

Your Content. We do not claim ownership in any content that you upload, provide, make available, or otherwise transfer (“Your Content”) on the Site, but to be able to legally provide our Users with the Site, we have to have certain rights to use such Your Content in connection with the Site, as set forth below.  By posting Your Content on the Site, you hereby grant to us an unrestricted, irrevocable, perpetual, non-exclusive, fully-paid and royalty-free, license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, perform, display, create derivative works of, and distribute Your Content in any and all media (now known or later developed) throughout the world. No compensation will be paid with respect to Your Content. You should only post User Content to the Site that you are comfortable sharing with others under the terms and conditions set forth herein.

Representations Regarding Your Content. You represent and warrant that: (a) you own Your Content or otherwise have the right to grant the license set forth in this Agreement, (b) Your Content does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person, (c) by providing or posting Your Content, you are not violating any confidentiality, non-disclosure, or contractual obligations you might have towards a third party, including your current or former employer or any potential employer. Please do not provide any information that you are not allowed to share with others, including by contract or law and note that any information you do provide will be accessible by every User of the Site.

Our Content. We and our licensors (including other Users) own and retain all proprietary rights in the content posted in connection with the Services (the “Talmetrix Content”) and we own and retain all property rights in the Services. Provided you are a User, and subject to the terms and conditions of this Agreement, we hereby grant you a non-exclusive, limited, revocable, non-sublicensable license under the intellectual property rights licensable by us to download, view, copy and print Talmetrix Content from the Services solely for your personal use in connection with using the Services.

Reservation of Intellectual Property Rights. You acknowledge that all the intellectual property rights in the Services  are owned by Talmetrix or Talmetrix’s licensors. Except as specifically permitted by the Services, you agree not to (a) reverse engineer, decompile, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, (b) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Services or the Talmetrix Content or (c) rent, lease, loan, or sell access to the Services.  

Third Party Content. Content from other Users, advertisers, and other third parties is made available to you through the Services. Because we do not control such content, (a) you agree that we are not responsible for any such content, including advertising and information about third party products or service, employer, employee and regional-related information provided by other Users and (b) we make no guarantees about the accuracy, currency, suitability, or quality of the information in such content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other Users, advertisers, and third parties.

Acceptable Use and Conduct

You are solely responsible for any and all of Your Content that is posted through your Account on the Services and for your interactions with other Users.

Member Interaction. You will not use any information obtained from the Services in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent. In order to protect our Members from such advertising or solicitation, we reserve the right to restrict the number of communications which a Member may send to other Members and the sharing of any content in any period to a number and amount which we deem appropriate in our sole discretion.

Prohibited Content.  You agree that you will not post any Prohibited Content or use any Prohibited Content in connection with the Services. “Prohibited Content” is content that: (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or is pornographic or sexually explicit in nature; (ii) bullies, harasses or advocates stalking, bullying, or harassment of another person; (iii) involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing, or “spamming,”; (iv) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (v) promotes, copies, performs or distributes an illegal or unauthorized copy of another person’s work that is protected by copyright or trade secret law, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music, videos, or movies, or links to such pirated music, videos, or movies; (vi) is involved in the exploitation of persons under the age of eighteen (18) in a sexual or violent manner, or solicits personal information from anyone under eighteen (18); (vii) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses and other harmful code; (viii) solicits passwords or personally identifying information for commercial or unlawful purposes from other Users; (ix) except as expressly approved by us, involves commercial activities and/or promotions such as contests, sweepstakes, barter, advertising, or pyramid schemes; (x) contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software; or ; (xi) posts or distributes information which would violate any confidentiality, non-disclosure or other contractual restrictions or rights of any third party, including any current or former employers or potential employers, or (xii) otherwise violates the terms of this Agreement or creates liability for us.

Lawful Use. You will use the Services in a manner consistent with any and all applicable laws and regulations and solely for lawful purposes. The Services are for the personal use of Users only. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from Your Content without notice and may result in suspension or termination of your Account.

No Disruption. You will not: (i) interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services; (ii) introduce software or automated agents to the Services, or access the Service so as to produce multiple accounts, generate automated messages, or to strip or mine data from the Services; or (i) interfere with, disrupt, or modify any data or functionality of the Services.

Impersonation. You will not attempt to impersonate another User or person, including any of our employees.

Enforcement of the Acceptable Use Policy.  Any use of the Services in violation of this Agreement may result in, among other consequences, termination or suspension of your rights to use the Services. We have the right (but not the obligation) to review any content and delete (or modify) any content that in our sole discretion violates this Agreement or which is Prohibited Content, or may otherwise violate the rights, harm, or threaten the safety of any User or any other person, or create liability for us or any User. We reserve the right (but have no obligation) to investigate and take appropriate legal action in our sole discretion against you if you violate this provision or any other provision of this Agreement, including without limitation, removing Your Content from the Services (or modifying it), terminating your membership and Account, reporting you to law enforcement authorities, and taking legal action against you. You are solely responsible for creating backup copies of and replacing any of Your Content you post on the Services at your sole cost and expense.

Copyright Policy

It is our policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to us by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) an identification of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Services; (iv) your address, telephone number, and e-mail address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for our Copyright Agent for notice of claims of copyright infringement is as follows:

Talmetrix, Inc.

Attn: Copyright Agent

35 East 7th Street, Suite 710

Cincinnati, Ohio 45202

e-mail: info@talmetrix.com

Third-Party Websites

The Services may contain links to third-party websites (“Third-Party Websites“) (a) placed by us as a service to those interested in this information; or (b) posted by other Members. You use all such links to Third-Party Websites at your own risk. We do not monitor or have any control over, and make no claim or representation regarding Third-Party Websites. To the extent such links are provided by us, they are provided only as a convenience, and such link to a Third-Party Website does not imply our endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Website. When you leave the Site, our terms and policies no longer govern.

Disclaimers

We are not responsible for any incorrect or inaccurate content (including any information in profiles) posted on the Services, whether caused by Users or by any of the equipment or programming associated with or utilized in the Services. We are not responsible for the conduct, whether online or offline, of any User of the Services. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication with other Users. We are not responsible for any problems or technical malfunction of any hardware and software due to technical problems on the Internet or at the Site or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Services. Under no circumstances shall we be responsible for any loss or damage, including personal injury or death, resulting from use of the Services or from any content posted on the Site or transmitted to Users, or any interactions between Users of the Services, whether online or offline.

Your interactions with other Users on the Services or with advertisers, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User or advertiser. You agree that we are not responsible for any loss or damage incurred as the result of any such dealings or with respect to any other User’s use or disclosure of information about you that you have provided to publicly available sections of the Services. If there is a dispute between you and any third party (including any User), we are under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between you and other Users.

THE SERVICES ARE PROVIDED “AS-IS” AND AS AVAILABLE. WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.  Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.

IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF FIFTY U.S. DOLLARS ($50) AND THE AMOUNTS YOU PAID TO US IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE CLAIM.  Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. You may also have other legal rights that vary from jurisdiction to jurisdiction.

General

Amendments. This Agreement may be modified by us from time to time. If we make material changes to the Agreement, we will either notify you by sending an e-mail to your e-mail address, as specified in your Account, or post the modified Agreement to our websites or both. You agree that such amended Agreement will be effective ten (10) days after being sent to you, and your continued use of the Services after that time shall constitute your acceptance of the amended Agreement.

Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, terrorism, governmental act, failures of common carriers (including Internet service providers), acts of God, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

Release. To the maximum extent permitted by applicable law, you hereby release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) any interactions with other Users, or (ii) your participation in any of our offline events. If you are a California resident, you waive your rights, whether known or unknown, under California Civil Code ¤ 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Residents of other states and nations similarly waive their rights under applicable and/or analogous laws, statutes, or regulations.

Survival. The provisions under the “Disclaimers” and “General” section headings survive expiration or termination of this Agreement for any reason.

Indemnity. You agree to defend, indemnify, and hold us, our subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Services and arising from your breach of any provision of this Agreement.

Governing Law and Arbitration. This Agreement shall be governed by the laws of the State of Ohio without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. Any claim or dispute in connection with this Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration. The arbitration shall be initiated through an established alternative dispute resolution provider mutually agreed upon by the parties. The alternative dispute resolution provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.

Disclosures. Under Civil Code Section 1789.3, Users are entitled to the following specific consumer rights information: the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA, 95814, or by telephone at 916.445.1254.

Copyright/Trademark Information. Copyright © 2008-2017, Talmetrix, Inc. All rights reserved. “Talmetrix” is a registered trademark of Talmetrix, Inc. The trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Mark.

Miscellaneous.  Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. As used in the Agreement, the word “including” means “including but not limited to”. Please contact us with any questions regarding this Agreement by e- mailing us at: info@talmetrix.com.