End User License Agreement (Free Trial Terms and Conditions) For 30-Day Free Trial Use of Empliant’s Survey and Forms Tool Software Application (“EULA”)
This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Empliant, Inc. (“Empliant”) for access to the Empliant software application (“Software”) that accompanies this EULA, which may include associated media, printed materials, “online” or electronic documentation, and Internet-based services.
YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT WHEN YOU USE THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT ACCEPT OR USE THE SOFTWARE.
GENERAL: Empliant grants you a license to use the Software under the terms and conditions set forth in this EULA, provided that you comply with all such terms and conditions. The Software is protected by copyright and other intellectual property laws and treaties. Empliant owns the title, copyright, and other intellectual property rights to the Software. Empliant reserves all rights not expressly granted to you in this EULA. The Software is licensed, not sold.
ADDITIONAL RIGHTS AND LIMITATIONS: You may not reproduce, or install the Software on your computer. You may only use the Software through the web server access provided by Empliant. You may not reverse engineer, decompile, or disassemble the Software, including any codes or protocols associated with the Software.
DISCLAIMER OF WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMPLIANT PROVIDES TO YOU ACCESS AND USE OF THE SOFTWARE, AND SUPPORT SERVICES (IF ANY AS DESCRIBED IN THIS EULA) AS IS AND WITH ALL FAULTS; AND EMPLIANT HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EMPLIANT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT OR PRODUCT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF EMPLIANT, EVEN IF EMPLIANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF EMPLIANT UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO U.S. $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
1. INTRODUCTION: This Agreement governs End User’s use of the Survey and Forms Tool Software (Software) developed and owned by Empliant. End User will be provided access through Empliant to Empliant’s Software to create, publish, and distribute online surveys to End User’s employees, customers, and vendors. End User also will be provided access to the collected data results from surveys and forms it publishes to its employees, customers, vendors, and others.
2. LICENSE: Subject to the terms and conditions of this Agreement, Empliant grants End User, and End User accepts, a nontransferable and nonexclusive license to use in object code form only the Software for the sole purpose of providing online survey and forms administration services for its business purposes. End User may use and access the Software solely through an approved web site identified by Empliant in writing from time to time (the “Site”).
End User acknowledges that Empliant is the sole owner of all intellectual property rights in and to the Software and the Site, including but not limited to the structure, organization, design, algorithms, methods, templates, data models, data structures, flow charts, logic flow, and screen displays associated therewith. Except as expressly authorized in this Agreement, End User will not copy, modify, distribute, sublicense, transfer, display, rent or unbundle the Software. In addition, End User will not reverse engineer, decompile or disassemble the Software, and will not otherwise attempt to reconstruct or discover the source code for the Software. Empliant reserves all rights in the Software not expressly granted to End User.
3. ACCEPTANCE: Acceptance of this 30-day trial license is deemed to have occurred upon End User’s submission of this acceptance by using the “Submit” button below.
4. ADDITIONAL END USER OBLIGATIONS: End User shall have sole responsibility for acquiring and maintaining its own technology environment, including but not limited to PC’s, operating systems, servers, Internet access, local area networks, and wide area networks.
End User agrees to comply with Empliant’s procedures and security measures associated with access to the Software and the Site (the “Empliant Procedures”), which will be maintained by Empliant on the Site and are incorporated by reference in this Agreement. Empliant may revise the Empliant Procedures from time to time.
Empliant may in its sole discretion deny or remove access to any user of the Software or Site (“User”) who fails to abide by the Empliant Procedures or who otherwise tampers with or abuses the Site or the Software or utilizes the software for illegal, disruptive or other inappropriate purposes.
5. FEES AND EXPENSES: Empliant waives all other subscription and usage fees during the 30-day trial period.
6. CONFIDENTIALITY: “Confidential Information” means any information or data (including without limitation any formula, pattern, compilation, program, device, method, technique, or process) that is disclosed by one party (a “disclosing party”) to the other party (a “receiving party”) pursuant to this Agreement. Confidential Information of Empliant includes, but is not limited to, the terms of this Agreement; the Software, as well as the structure, organization, design, algorithms, methods, templates, data models, data structures, flow charts, logic flow, and screen displays associated with such Software. Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records.
A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in strict confidence; and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the Confidential Information. In addition, without limiting the foregoing, Empliant agrees to use, and to require its contractors to use, reasonable procedures and mechanisms to maintain the security of and to prevent the unauthorized access to the computer systems on which End User’s Confidential Information resides. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.
Each party acknowledges and agrees that any violation of this Section 6 or the intellectual property rights of Empliant may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and in no way in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.
7. TERM OF AGREEMENT: The Term of this license agreement is 30 calendar days, beginning with the date the agreement is accepted by the End User – as set forth in Section 3.
8. WARRANTY: Empliant warrants that the Software will substantially conform to the online training instructions. If it does not, at Empliant’s option, Empliant will either make the online training instructions conform to the Software, or replace it with conforming Software. This is the exclusive remedy for breach of the foregoing warranty.
9. LIABILITY: In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, savings, data, or the cost of recreating lost data), even if it has been advised of their possible existence.
10. INDEMNIFICATION: If a claim of copyright, patent, trade secret, or other intellectual property rights violation is made against End User relating to the Software, End User agrees to immediately notify Empliant, allow Empliant to control the litigation or settlement of such claim, and cooperate with Empliant in the investigation, defense, and/or settlement thereof. Empliant agrees to take control of the litigation and indemnify the End User by paying any settlement approved by Empliant, or any judgment, costs, or attorneys’ fees finally awarded against the End User for such claim. End User may participate at End User’s own expense. This indemnification obligation does not apply to the extent the claim is based on a combination of Software with other software, or any modification to the Software, if such claim would not have been made but for the combination or modification. If such a claim is made or, in Empliant’s opinion, is likely to be made, Empliant, at its sole discretion, may modify the Software, obtain rights for the End User to continue using the Software, or terminate the agreement for the Software.
11. MISCELLANEOUS: Neither party shall be liable for any failure or delay in the performance of its obligations due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, accident, fire, explosion, flood, hurricane, severe weather or other act of God.
12. TECHNICAL SUPPORT: During the 30-day Trial Period, Empliant will provide e-mail technical and phone support to the End User. Empliant will attempt to respond to e-mail requests for technical support within one business day (24 hours); phone response within 4 hours. If End User requests in-person support, End User will approve such charges in advance. Charges for in-person technical support will be provided at the rate of $150/hour, billed in 15-minute increments of $37.50. End User abuse of free e-mail and phone support, as determined by Empliant, could lead to Empliant’s termination of this agreement.
13. PRE-AUTHORED SURVEYS: You have access to a library of pre-authored surveys. You may use and edit these pre-authored surveys for your individual organizational purposes.
14. USAGE LIMITATION: End User may create and publish an unlimited number of surveys and forms during the term of this EULA, however the maximum number of response submissions permitted for each survey or form published by the End User is limited to 5000.