PLEASE READ THIS SUBSCRIPTION AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE PPC ASSURANCE SOFTWARE. BY CLICKING ON THE "SUBMIT" BUTTON, AND/OR EXECUTING A SALES ORDER FORM INCORPORATING THIS AGREEMENT, AND/OR ACCESSING THE PPC ASSURANCE REPORTS VIA THE ONLINE SERVICE (THE "SERVICE"), YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
If you are signing up for the service on behalf of a company, you represent that you are duly authorized to represent the company and accept the terms and conditions of the agreement on behalf of the company. By your acceptance, a binding contract is then formed between RJ Research Inc, providers of PPC Assurance products and services ("PPC Assurance") and the company in accordance with the terms and conditions of this Agreement. You personally agree not to commit or encourage any violation of the Agreement between PPC Assurance and the company. If you are entering into this agreement on behalf of your company, the term "you" in this agreement means your company and all of its employees.
If you are signing up for the Service on your own behalf, or if you are not authorized to represent the company on whose behalf you purport to sign up, you agree that you are personally bound by this Agreement.
IF THE COMPANY YOU REPRESENT OR YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE "SUBMIT" BUTTON OR THE "I HAVE READ AND AGREE" BOX, DO NOT EXECUTE A SALES ORDER FORM INCORPORATING THIS AGREEMENT, AND DO NOT USE THE SERVICE.
1. General
1.1. Definition. As used in this Agreement the terms "You" and "Yours" encompasses each user accessing the Service by means of a valid account established by You including, if you are a corporation, all employees of Your corporation.
1.2. Modification. PPC Assurance reserves the right to make changes to its policies, procedures and practices and to make changes to its hosting and technical infrastructure during the term of this Agreement as deemed reasonably necessary by PPC Assurance to provide service to PPC Assurance customers.
2. Right to Access Proprietary Software
2.1. Right to Access. Subject to the terms of this Agreement, including the PPC Assurance sales Order Form executed by you, and until the expiration or termination of the Agreement, PPC Assurance grants to You a limited, non-transferable, non-exclusive right to access and use its proprietary, PPC Assurance reports ("Reports") via a web browser and related documentation as described in a mutually executed order ("Order Form") and subject to the use limitations further described in the Order Form. The Reports is hereby made available to You as a Service. PPC Assurance will host and retain physical control over the Reports and make such computer programs and code available only through the Internet for access, use and operation by You through a Web-browser (e.g., Internet Explorer). No provision under this Agreement shall obligate PPC Assurance to deliver or otherwise make available any copies of computer programs or code from the Software to You, whether in object code or source code form.
2.1.1. Trial. If you have registered for a free trial period, PPC Assurance grants You the limited right to access (as described in Section 2.1) the Service for the indicated trial period beginning from the date you click on the "Submit" button.
2.2. License Restrictions. You (and if You are a company, Your employees) shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the PPC Assurance Software; modify, translate, or create derivative works based on the PPC Assurance Software; or rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the PPC Assurance Software or Reports; or remove any proprietary notices or labels on the PPC Assurance Software or Reports.
2.3. Ownership. PPC Assurance shall retain all right, title and interest in and to the Software, Services, the documentation for its service, and all modifications and/or enhancements to its Software, regardless of the source of inspiration for any such enhancement or modification and regardless of whether You have provided input regarding such modifications and/or enhancements. You acknowledges that PPC Assurance will retain all right, title and interest to transactional and performance data related to use of the Software which PPC Assurance may collect and use for its business purposes provided that it meets the terms and conditions of the Privacy Policy. Any custom developed documents, designs, computer programs, computer documentation and other tangible materials authored or prepared by PPC Assurance for You ("Deliverables") as required by a statement of work shall are hereby licensed, solely for Your internal use, for the term of this Agreement. PPC Assurance retains ownership and may reuse any Deliverables, provided that such use does not reveal Your identity.
2.4. Equipment. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Software. PPC Assurance makes no guarantees as to the continuous availability of the Service or of any specific feature(s) of the Software.
3. Use Restrictions
3.1. Prohibited Uses. You will only use the Service for lawful purposes, in compliance with all applicable laws including, without limitations, copyright, trademark, obscenity and defamation laws. Unlawful activities may include (without limit) attempting to compromise the security of any networked account or site. You hereby agree to defend, indemnify and hold PPC Assurance harmless against any claim or action that arises from Your use of the Service in an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein. Except as may be expressly provided elsewhere in this Agreement or except to the extent applicable law precludes such activities from being prohibited by contract, You agree that it shall not: decompile, reverse engineer, disassemble or otherwise determine or attempt to determine source code or the executable code of the Software or create any derivative works based upon the Software, or authorize any third party to do so; rent, lease, distribute, or resell the Software, or attempt to do any of the foregoing; or obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or the related documentation, unless specifically permitted to do so, in writing, under special agreement with the Company.
3.2. Third Party Contractors. You may make the Service available for use by third-party contractors used by You solely to assist in You staffing efforts ("Third-Party Contractor") within the limits of the usage rights and restrictions set forth in this Agreement and any Order Form and subject to the section below titled "PPC Assurance Competitors". You are responsible for the use of the Service by such Third-Party Contractors, including compliance with each term of this Agreement to the same extent as if the Third-Party Contractor were Your employee. You agree that any password provided to a Third-Party Contractor will be disabled immediately upon conclusion of such Third-Party Contractor's work for You.
3.3. Ethical Hacks. You shall not and shall not allow anyone working on your behalf to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan without PPC Assurance's prior written consent, or (ii) attempt to access the data of another PPC Assurance customer. You shall not and shall not allow anyone working on your behalf to use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as "Robots") in conjunction with the PPC Assurance Service. Common Robots include, without limitation, Loadrunner, Winrunner, Silk performer, Rational Robot, QALoad and WebLOAD and such programs are commonly used for the purpose of data entry, data loading, data migration, load testing, performance testing, performance monitoring, performance measuring and stress testing. Use by You or anyone working on your behalf of a Robot, including those listed above or other similar programs, with the PPC Assurance Service for the purposes listed above or any other purpose is a material breach of this Agreement. You shall indemnify and hold PPC Assurance harmless without limitation from any damages, losses, claims, costs, expenses or liabilities arising from downtime, production incidents or other technical problems arise during a time period in which You is in breach of this provision or as a result of Your breach of this provision, including without limitation, damages or credits to PPC Assurance customers arising from downtime and costs, including third party costs, related to the correction of such downtimes, production incidents or other technical problems.
4. Data Privacy and Protection
4.1. Privacy Policy. It is PPC Assurance's policy to respect the privacy of its users. A copy of PPC Assurance's privacy policy is located on PPC Assurance's website. PPC Assurance's privacy policy is subject only to PPC Assurance's obligation to comply with applicable laws and lawful government requests, to operate its business properly, and to protect its users or itself.
4.2. Data Backup and Security. PPC Assurance shall use all reasonable efforts to protect Your data behind a secure firewall system, to conduct daily data backups, and to store weekly full-system backup in a separate facility.
4.3. Aggregated Transactional Data. PPC Assurance may occasionally ask You to provide demographic or personal preference data. If You elect to provide such data, PPC Assurance may use them to analyze the characteristics of PPC Assurance customers and visitors to the PPC Assurance Web site. PPC Assurance may also use such data to customize the specific information provided to You, or tailor it to better meet Your needs. PPC Assurance may share information aggregated from such data with third parties without notifying you provided that such use does not reveal Your identity or specific Software use characteristics that may be identified to You. You acknowledge that PPC Assurance will retain all right, title and interest to transactional and performance data related to use of the Software which PPC Assurance may collect and use for its business purposes (including Software use optimization and product marketing).
5. Support.
5.1. PPC Assurance will provide support in accordance with PPC Assurance's then current support policy. PPC Assurance has no obligation to provide You with hard-copy documentation, upgrades, enhancements, modifications, or other support unless specifically contracted for.
6. Consulting Services
6.1. Consulting Services. You may agree to purchase from PPC Assurance consulting services ("Consulting Services") as set forth in any separate mutually executed statement of work that references and incorporates the terms of this Agreement (each an "SOW"). Such fees will accrue on a time and materials basis in US dollars unless otherwise indicated in the SOW. All fees for Consulting Services shall be invoiced monthly in arrears and paid in US dollars, upon receipt of invoice.
7. Billing and Payment
7.1. Billing Information. If the terms of Your PPC Assurance Online account require You to pay for the Service, You agree to provide PPC Assurance with accurate billing information and with truthful, accurate, and complete contact information, including Your legal name, company name, street address, e-mail address, and telephone number, and to update this information within 30 days of any change to it. If the contact information You have provided is false or fraudulent, PPC Assurance reserves the right to terminate Your access to the Service immediately without any obligation to return Your data. You agree to pay PPC Assurance the then-applicable fees (the "Fees") by a payment method to be determined by PPC Assurance in its sole discretion (credit card, invoice, purchase order, prepayment or other payment method).
7.2. Fees and Taxes. During the term of this Agreement, You agree to pay PPC Assurance the fees associated with use of the PPC Assurance Service and optional services reflected in a PPC Assurance sales Order Form. All payments, fees and other charges payable by You to PPC Assurance under this Agreement are exclusive of all applicable federal, state, local and foreign taxes, levies and assessments. You agree to bear and be responsible for the payment of all such taxes, levies and assessments imposed on You or PPC Assurance arising out of this Agreement, excluding any tax based on PPC Assurance's net income. If You are required by any applicable law to deduct or withhold amounts otherwise payable to PPC Assurance hereunder, You will pay the required amount to the relevant governmental authority and pay to PPC Assurance, in addition to the payment to which PPC Assurance is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by PPC Assurance free and clear of all taxes equals the full amount PPC Assurance would have received had no such deduction or withholding been required.
7.3. Fraudulent or Delinquent Payment. Payment by fraudulent means will result in immediate and permanent termination of the account, and possible criminal penalties. Your access to the Service may be suspended if Your account is delinquent. For credit card payments, Your account will be considered delinquent if Your credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid (thirty) 30 days following the billing cycle. PPC Assurance may impose a charge to restore archived data from delinquent accounts. Unpaid charges are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Any account which is suspended for more than thirty (30) days will be terminated without any obligation on the part of PPC Assurance to maintain, store or return to you any of Your data or data residing in your instance of the PPC Assurance Service.
7.4. Adjustments. If You believe PPC Assurance has billed You incorrectly, You must contact PPC Assurance in writing no later than thirty (30) days after the Billing Date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. You agree to retain complete, clear and accurate records regarding Your use of the Software and agree to submit to a reasonable audit of this information upon reasonable notice by PPC Assurance not more than once per calendar year.
8. Publicity
8.1. If You become a paying subscriber of the Service, PPC Assurance may, at its discretion, issue a press release announcing the use of the Service by You. As of the effective date of paid subscription activation, You hereby grant PPC Assurance the right to reference You, along with Your logo, on the customers section of PPC Assurance's web site until such time as Your use of the service is discontinued.
9. Passwords and Security
9.1. Passwords. You will choose or be given all applicable passwords to use in connection with the Service. You are entirely responsible for maintaining the confidentiality of Your passwords and account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by You). Furthermore, You are entirely responsible for any and all activities that occur under Your account (including, if applicable, the accounts of each user accessing the Service by means of an account established by You), and You shall ensure that You exit from Your account at the end of each session. Each password may be used by one individual named person only. Passwords may not be used concurrently or shared by more than one individual named person.
9.2. Security. You shall notify PPC Assurance immediately of any unauthorized use of Your account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by You) or any other breach of security. PPC Assurance will not be liable for any loss or damage arising from Your failure to comply with these requirements.
10. Term and Termination
10.1. Term
10.1.1. 30-day Trial. If you are participating in our Free, No Obligation 30-Day Trial, this Agreement lasts thirty (30) days from date of Service Authorization. At the conclusion of the Free, No Obligation 30-Day Trial, if You choose not to purchase a PPC Assurance subscription, You will immediately cease all use of the Service, including the PPC Assurance Software and any documentation.
10.1.2. Purchased Services. If you are purchasing Services, this Agreement shall last for the term set forth in an Order Form, and will renew automatically upon the same terms and conditions, including fees set forth in the order form, for one (1) year periods unless either party requests change or termination thirty (30) days prior to the expiration of the then-current order form. PPC Assurance, in its sole discretion, may terminate Your use of the Service if You fail to comply with this Agreement.
10.2. Termination. Upon termination of this Agreement for any reason, the license will terminate, and You, and any user accessing the Service by means of a company account, if applicable, will cease to use or have access to the PPC Assurance Software. Upon termination, you may request a copy of the most recent back-up of Your data. Fees may apply to back-ups greater than a specified size. PPC Assurance may, but is not obligated to, delete archived data, but will not do so until thirty (30) days after the termination of this Agreement. Delinquent accounts must be brought to good standing in order to receive data.
10.3. Survival. Each provision of this Agreement reasonably intended by its terms to survive termination or expiration of this Agreement shall so survive.
11. Warranty and Disclaimer
THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND PPC ASSURANCE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. PPC ASSURANCE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM USE OF THE SERVICE.
12. Limitation of Liability
PPC ASSURANCE'S TOTAL LIABILITY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY YOU TO PPC ASSURANCE FOR THE SERVICE UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. NEITHER PPC ASSURANCE NOR ITS LICENSORS SHALL BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), WHETHER OR NOT FORESEEABLE AND EVEN IF PPC ASSURANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Infringement Indemnity
PPC Assurance shall, at its expense, defend or at its option, settle any claim, action or allegation brought against You that the Software or any Deliverable infringes any valid copyright, patent, trade secret, or any other proprietary right of any third party and shall pay any final judgments awarded or settlements entered into; provided that You gives prompt written notice to PPC Assurance of any such claim, action or allegation of infringement and gives PPC Assurance the authority to proceed as contemplated herein. PPC Assurance will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and You may not settle or compromise such claim, action or allegation, except with prior written consent of PPC Assurance. You shall give such assistance and information as PPC Assurance may reasonably require, to settle or oppose, such claims. In the event any infringement claim, action or allegation is brought or threatened, PPC Assurance may, at its sole option and expense (i) procure for You the right to continue use of the Software or infringing part thereof; or (b) modify or amend the Software or infringing part thereof; or (c) replace the Software or infringing part thereof with other software having substantially the same or better capabilities; or(d) terminate this Agreement and refund to You the prorated amount of the fees prepaid by You that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term. The foregoing obligations will not apply to the extent the infringement arises as a result of (a) any use of the Software in a manner other than as specified in this Agreement; (b) any use of the Software in combination with other products, equipment, devices, software, systems or data not supplied by PPC Assurance to the extent such claim is directed against such combination; or (c) any alteration, modification or customization of the Software made by any party other than PPC Assurance or PPC Assurance's authorized representative if such infringement would not have occurred without such modification or combination. This Section 13 above states the entire liability of PPC Assurance with respect to infringement of any patent, copyright, trade secret or other intellectual property right.
14. Conflict of Terms
In the event of a conflict between this Agreement and any Order Form executed by You, the PPC Assurance Order Form shall be deemed to govern with respect to the duration of the Agreement, fees, invoicing and payment terms, and Services purchased. In all other matters, in the event of a conflict between this Agreement and any Order Form, this Agreement will govern.
15. Miscellaneous
This Agreement is between PPC Assurance and You, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any user accessing the Service by means of an account established by You). The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by You except with PPC Assurance's prior written consent. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. YOU AND PPC ASSURANCE AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN THE COUNTY OF SAN FRANCISCO IN THE STATE OF CALIFORNIA. IN NO EVENT SHALL THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. You and PPC Assurance agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous or contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and You do not have any authority of any kind to bind PPC Assurance in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is confirmed by the receiver, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. It is the express will of the parties that this Agreement and all related documents have been drawn up in English.
