PLEASE READ THIS SOFTWARE LICENSE & TERMS OF SERVICE AND CONDITIONS OF USE (”AGREEMENT”) CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU (”CUSTOMER” OR “YOU”) AND ENQUISITE, A WHOLLY OWNED PROPERTY OF RJ RESEARCH INC. (”ENQUISITE”). BY INSTALLING AND/OR USING THE ENQUISITE SOFTWARE AND VIEWING THE ENQUISITE REPORTS, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT, INCLUDING REPRESENTATIONS BY YOU (6), AND THAT YOU ACCEPT THIS AGREEMENT IN ITS ENTIRETY. IF YOU DO NOT AGREE, CANCEL OUT OF YOUR INSTALLATION OR REGISTRATION OF THIS PRODUCT AND DO NOT INSTALL OR USE THE ENQUISITE SOFTWARE.
- ACCEPTANCE PROCEDURE.
By installing and using the Enquisite Software, including but not limited to XML, JavaScript or files, or parts thereof, and viewing the Enquisite reports (collectively referred to as “Enquisite Services”), you agree with all terms and conditions of this Agreement in its entirety. Enquisite reserves the right, at its sole discretion, to change this Agreement and its Privacy Policy from time to time, and your installation and/or use of the Enquisite Products will be deemed to be your acceptance of this Agreement and Privacy Policy, the reasonableness of these standards and notice of changes thereto. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE SOFTWARE.
- ENQUISITE LICENSE TO YOU.
Subject to the restrictions set forth herein, Enquisite grants you a non-exclusive, non-transferable, limited, revocable right to use the Enquisite Products solely for your business reporting purposes. This license does not entitle you to receive from Enquisite any documentation, support, telephone assistance, enhancements, modifications, patches or updates.
- LICENSE RESTRICTIONS.
You agree not to:
- rent, loan, resell, distribute, make available or otherwise transfer all or part of the Enquisite Products, in any form, to any other, person or entity;
- copy, modify, adapt, translate, reverse engineer, decompile, disassemble, in whole or in part, any of the Enquisite Products;
- use the Enquisite Products to operate in, or as, a file-sharing,time-sharing, outsourcing, or service bureau environment, or in any way allow third party access to the Enquisite Products;
- attempt to discover the source code of the Enquisite Products;
- create derivative works or in any way exploit the Enquisite Products in whole or in part;
- remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Enquisite Products;
- block, disable, or otherwise effect any advertising, advertisement banner window, tabs, links to other sites and services, or other features that constitute an integral part of the Enquisite Products;
- use the Enquisite Products in any way that violates this Agreement orany law; or
- authorize or assist any third party to do any of the things described in this paragraph.
- PROPRIETARY RIGHTS.
Enquisite retains all title, ownership, and intellectual property rights in the Enquisite Products. Customer agrees that by virtue of this Agreement, Customer does not acquire any right, title or interest in, or to, the Enquisite Products. The Enquisite Products are protected by copyright, trade secrets and other intellectual property laws and by international treaties. Other than the limited license granted, Enquisite reserves all patent, copyright, trade secret, trade name, trademark, and other proprietary or intellectual property rights related to the Enquisite Products.
- CHANGES TO THE PRODUCT AND AUTOMATIC UPDATES.
Enquisite has the right at any time to change, modify, add to or discontinue or retire any aspect or feature of the Enquisite Products or its features, and has no obligation to provide you with notice of any such changes. Enquisite, at its sole discretion, may deliver updates, modifications, and/or patches to the Enquisite Products to address issues such as functionality, features, security, interoperability, and performance (collectively “Updates”). Some Updates may change certain functionality of the Enquisite Products to, for example, improve security, add new functions, or improve the operation of the Enquisite Products. Your use of the Updates will be governed by this Agreement unless you are asked to agree to new or additional terms and conditions at the time of download or installation.
- CUSTOMER REPRESENTATION.
Customer acknowledges its understanding that the Enquisite Products embed Javascript data into Customer’s website which will collect and transmit to Enquisite data relating to the visitor’s use of Customer’s website, including but not limited to the following data:
- referring search engine name;
- rank on the page;
- query initiated;
- website page requested;
- date and time of search;
- browser used; and
- IP address from where search originated.
This data is processed by Enquisite to produce trend reports which aggregate the data collected. Customer agrees to comply with all applicable laws in regards to the installation and use of the Enquisite Products and its collection and transmission of visitor data to Enquisite. Customer represents that it is solely responsible for notifying its visitors of this data collection and that it has taken all necessary and appropriate actions to fully comply with this representation before installing and using the Enquisite Products. Customer further represents that it has no confidentiality or other obligations, legal or otherwise, which will be breached by its use of the Enquisite Products or by providing to Enquisite any information or data in connection with this Agreement and Customer’s use of the Enquisite Products.
- TERMINATION.
Enquisite may terminate Customer’s right to use the Enquisite Products at any time, with or without cause. The Disclaimer of Warranty (¶ 9), Indemnification (¶ 11), Waiver, Release and Limitation of Liability (¶ 10) No Third Party Beneficiaries (¶ 15) and Miscellaneous (¶ 16) paragraphs shall survive any termination of this Agreement. This Agreement shall commence upon your installation and/or use of the Enquisite Products. Upon termination or expiration of this Agreement, all rights and licenses granted to Customer under this Agreement shall terminate immediately.
- PRIVACY.
We consider our users’ privacy to be of utmost importance. Please see our Privacy Policy at www.enquisite.com/privacy.html for a detailed description of our information gathering and dissemination practices.
- DISCLAIMER OF WARRANTIES.
THE ENQUISITE PRODUCTS ARE LICENSED FOR USE “AS IS”, AND TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ENQUISITE AND ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY AND PERFORMANCE OF THE SOFTWARE, ERROR-FREE PERFORMANCE, QUALITY, NON-INTERRUPTION OF USE, FREEDOM FROM VIRUSES, BUGS OR OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ENQUISITE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND/OR AFFILIATES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
CUSTOMER EXPRESSLY AGREES THAT INSTALLATION AND USE OF THE ENQUISITE PRODUCTS IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY AND ALL DAMAGES RELATED THERETO, INCLUDING ANY DAMAGES TO CUSTOMER’S OR ITS END USERS’ COMPUTER SYSTEM, LOSS OF DATA, OR DAMAGES RELATING TO THE SOFTWARE’S COLLECTION AND TRANSFER OF END USER DATA. ENQUISITE AND ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND AFFILIATES MAKE NO WARRANTY THAT THE ENQUISITE PRODUCTS
- WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS;
- THE ENQUISITE PRODUCTS ARE SECURE AND/OR ERROR-FREE;
- THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE ENQUISITE PRODUCTS WILL BE ACCURATE AND/OR RELIABLE;
- ANY ERRORS WILL BE CORRECTED;
- THAT CUSTOMER’S USE OF THE ENQUISITE PRODUCTS AND ITS RELATED FUNCTIONS TO COLLECT AND TRANSMIT END USER DATA WILL COMPLY WITH THE LAWS OF EACH LOCAL JURISDICTION.
CUSTOMER EXPRESSLY AGREES THAT IT WILL ASSUME THE ENTIRE RISK AS TO THE PERFORMANCE OF THE ENQUISITE PRODUCTS AND ITS COLLECTION AND TRANSMISSION OF END USER DATA.
- WAIVER, RELEASE AND LIMITATION OF LIABILITY.
YOU AGREE THAT ENQUISITE, ITS OFFICERS, EMPLOYEES, AGENTS, AND SUBCONTRACTORS SHALL HAVE NO LIABILITY TO YOU OR CUSTOMERS’ END USERS UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE ENQUISITE PRODUCTS. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST ENQUISITE, ITS OFFICERS, EMPLOYEES, AGENTS AND SUBCONTRACTORS (INCLUDING, BUT NOT LIMITED TO, CLAIMS BASED ON THE NEGLIGENCE OF ITS OFFICERS, EMPLOYEES, AGENTS, AND SUBCONTRACTORS) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE ENQUISITE PRODUCTS AND THE ASSOCIATED COLLECTION AND TRANSMISSION OF END USER DATA.
IN NO EVENT SHALL ENQUISITE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, AND/OR AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, INDIRECT OR OTHER DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOSS OF GOOD WILL, WORK STOPPAGE, REVENUES, SALES, DATA, LOSS OF BUSINESS INFORMATION, PROPERTY DAMAGE, COMPUTER FAILURE OR MALFUNCTION, DATA COLLECTION, TRANSMISSION AND MAINTENANCE, PERSONAL INJURY OR THE LIKE) HOWEVER CAUSED, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATIONS OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF ENQUISITE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, AND/OR AFFILIATES HAS BEEN ADVISED OF, OR ARE AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, OR IF THE SOFTWARE, SERVICES, OR THE REMEDIES PROVIDED HEREIN FAIL IN THEIR ESSENTIAL PURPOSE.
CUSTOMER, AND ENQUISITE UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF SERVICE AND NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS AND ARE AN ESSENTIAL PART OF THIS AGREEMENT WITHOUT WHICH ENQUISITE WOULD NOT BE ABLE TO PROVIDE THE ENQUISITE PRODUCTS.
IN NO EVENT SHALL THE AGGREGATE MAXIMUM LIABILITY OF ENQUISITE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, AND/OR AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT CUSTOMER PAID IN FEES UNDER THIS AGREEMENT OR TWENTY-FIVE DOLLARS ($25), WHICHEVER IS GREATER.
- INDEMNIFICATION.
Customer shall defend, indemnify and hold harmless Enquisite from and against any and all third-party claims, suits, demands, damages, losses, and liabilities (including the costs, expenses, and reasonable attorneys fees on account thereof) resulting or arising from, or alleged to be resulting or arising from:
- your use of the Enquisite Products or services and any activity related there to;
- the material breach by Customer of any representation, warranty orcovenant under this Agreement;
- the unlawful, negligent, intentional or otherwise wrongful act oromission of Customer, its employees, agents or subcontractors;
- any false, fraudulent, untrue or inaccurate statements, representations or data provided to Enquisite by Customer, its employees, agents or subcontractors;
- any claims made, or actions taken, by Customer or its vendors,contractors, end users, visitors, clients, employees or agents against Enquisite relating in any way to the Enquisite Products and/or Enquisite’s services to Customer;
- any data or materials provided or transmitted from Customer, its employees, agents or subcontractors to Enquisite;
- any claim that the information provided or utilized by Enquisite in connection with the Enquisite Products or services contains any false,fraudulent, untrue or inaccurate statements or representations; and/or
- damages to property or injuries or death to persons.
Enquisite reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, and only in such event, shall you have no further obligation to provide indemnification for Enquisite in that matter.
- INJUNCTIVE RELIEF.
It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of this Agreement by Customer will cause Enquisite irreparable damage for which recovery of money damages would be inadequate, and therefore Enquisite shall not have an adequate remedy at law. Accordingly, Enquisite shall be entitled to a preliminary and final injunction without the necessity of posting any bond or undertaking in connection therewith to prevent any further breaches. This remedy is separate and apart from any other remedy Enquisite may have.
- CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES.
You agree that the law of the Province of British Columbia (BC) governs this Agreement and any claim or dispute that you may have against Enquisite, without regard to BC’s conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. In the event of a dispute, the parties agree to meet and confer. If such dispute is not resolved, you agree that any disputes or claims that you may have against Enquisite will be resolved by a court located in the Province of British Columbia and that you are subject to the personal jurisdiction of courts located in the Province of British Columbia for the purpose of resolving any such disputes. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.
- ASSIGNMENT.
Customer may not assign, by operation of law or otherwise, any rights or delegate any duties under this Agreement without Enquisite’s prior written consent and any attempt to do so without that consent shall be void. Enquisite may assign its rights and duties under this Agreement to any party at any time without notice to you. Subject to the foregoing, this Agreement will be binding and inure to the benefit of the Parties and their permitted successors and assigns.
- NO THIRD PARTY BENEFICIARIES.
Customer and Enquisite agree that there are no third party beneficiaries to this Agreement, including but not limited to any of Customer’s end users, visitors, clients, vendors, patients, contractors, or the like.
- MISCELLANEOUS.
The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. Any cause of action or claim you may have with respect to the Enquisite Products or services must be commenced within six (6) months after the claim or cause of action arises.
- CUSTOMERS OUTSIDE CANADA.
If you are using the Enquisite Products outside Canada, the following provisions of this Section shall apply, in addition to all other provisions of this Agreement:
- you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Enquisite Products, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this Agreement enforceable;
- if the laws applicable to your use of the Enquisite Products would prohibit the enforceability of this Agreement, or impose any additional burdens on Enquisite, or confer any rights to you that are materially different from the terms and conditions of this Agreement, then you are not authorized to use the Enquisite Products and you agree to remove it from your computer; and
- you acknowledge that you have read and understand the Customer Representations of Paragraph 6 and that your installation and use of the Enquisite Products to collect visitor data fully comply with the local laws in your jurisdiction and the jurisdictions of your visitors.
- COMPLETE AGREEMENT.
Except as expressly provided herein, this Agreement constitutes the entire agreement between you and Enquisite with respect to your installation and use of the Enquisite Products and services and supersedes all previous written or oral agreements and/or the terms of service accompanying any prior version of the Enquisite product you may have used. In the event of any inconsistency between this Agreement and any other terms of use or operating rules of a specific Enquisite Product, this Agreement will supersede such other terms of service or operating rules. The provisions of this Agreement are severable and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity and enforceability of the remaining provisions hereof.
- NOTICE.
We may deliver notice to you under this Agreement by means of electronic mail, general notice on Enquisite website at www.enquisite.com or by written communication delivered by first-class U.S. mail to your address on record in our account information. You may give notice to Enquisite at any time via electronic mail to support@enquisite.com or by letter delivered by first-class postage-paid U.S. or overnight courier to the following address:
Enquisite, Inc.
649 Mission Street, 5th floor
San Francisco, CA 94105
USA
Thank you for your cooperation. We hope you find the Enquisite Products informative and convenient to use.
