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General Terms and Conditions of Use
Survey Terms and Conditions of Use
1. ACCEPTANCE OF TERMS
1.1 Read these Terms of Use ("Terms") carefully before you, an individual or entity ("You"), use the Equilar ("Equilar" or Service Provider") Website located at www.equilar.com (the "Service") or any affiliated website in any manner. BY ACCESSING THIS SERVICE, YOU ACCEPT WITHOUT LIMITATION OR QUALIFICATION, ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT.
1.2 The Terms may be modified by Service Provider from time to time. Continued use of the Service by You will constitute Your acceptance of any changes or revisions to the Terms. Your failure to comply with these Terms, whether listed below or in supplemental notices posted at various points in the Service, may result in termination of Your access to the Service, without notice, in addition to Service Provider's other remedies. Access to and use of the Service are subject to the terms and conditions of this Agreement and all applicable laws and regulations, including laws and regulations governing copyright and trademark. Equilar reserves the right to change these terms and conditions at any time.
1.3 For purposes of this Agreement, entity use only applies to users located in the United States and Canada (the "Territory"). Additional fees apply to users located outside the Territory.
2. LICENSE AND RESTRICTIONS
2.1 Subject to these Terms, Equilar hereby grants to You for the Term and any Renewal Term a non-exclusive, personal, non-transferable, non-sublicenseable, limited license to access the Service solely to electronically display and print reasonable portions of the Service for Your internal research purposes. Nothing contained in these Terms shall transfer, or be deemed to transfer to You, any rights in or to the Service other than those rights specifically granted herein. Except as expressly provided in the foregoing, You shall not store, reproduce, publish, transmit, broadcast, display, distribute or use information derived from access to the Service and/or Equilar website.
(a) You shall not: (i) decompile, disassemble, reverse engineer, or otherwise attempt to modify, adapt, or create derivative works of any software, technology, or work of authorship within or related to the Service; (ii) sublicense, distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Service; (iii) allow or grant any access to the Service in any form to any party other than its duly authorized users, including access pursuant to any commercial time-sharing, rental, or service bureau arrangements and access to users outside the Territory defined in 1.3; (iv) share usernames, passwords or data with others; or (v) remove, obscure or otherwise alter any proprietary notices, including copyright and trademark notices, contained in the Service or on the website.
(b) You agree not to: (i) use any robot, spider, other automatic device, or manual process to monitor or copy the Service, Equilar website, or any content contained therein without the prior written consent of a duly authorized representative of Equilar; (ii) use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or Equilar Website; or (iii) take any action that imposes an unreasonable or disproportionately large load on the Equilar website and/or related infrastructure.
(c) If You are an individual accessing the Service because You are an employee of or are otherwise associated with (e.g. member of the Board of Directors or a consultant) a licensed Equilar entity, You represent that you are located in the Territory and agree that you will use the Service solely with respect to Your internal research related to that licensed Equilar entity.
3. FEES, PAYMENT, TAXES AND LIQUIDATED DAMAGES
3.1 Fees and Payment Terms. You shall pay the Fees set forth in the Equilar Order Form. All Fees shall be due and payable within thirty (30) days of the date of Equilar's invoice. You acknowledge that any and all payments to Equilar are non-refundable and non-creditable and that you are liable for all Fees for the agreed to Term or Renewal Term, including multi-year Terms or Renewal Terms, even if You stop using the Service . All payments will be made in U.S. Dollars. Any payments not paid when due shall accrue interest at the lesser of (i) one and a half percent (1.5%) per month and (ii) the highest rate of interest allowed by applicable law. Any payments more than sixty (60) days in arrears will also be subject to a late fee of $250.00.
3.2 Taxes. You shall be responsible for and shall pay all sales, use and value-added taxes, and any other similar taxes and charges of any kind imposed by any governmental entity with respect to the Service or any of the Fees payable under this Agreement, except for taxes based solely on Equilar's net income. When Equilar has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by You unless You provide Equilar with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.3 Liquidated Damages. If You share usernames, passwords or data with others in violation of Section 2.1(a)(iv), You will pay Equilar Liquidated Damages in the amount of $25,000.
4. YOUR OBLIGATIONS
Unauthorized Use. You shall protect the Service from any use that is not permitted under these Terms. You represent and warrant to Equilar that You shall not (i) interfere with or disrupt the Equilar website, the Service or servers or networks connected to the Service; (ii) gain unauthorized access to other computer systems through the Equilar Website and/or the Service; (iii) disrupt the Service or otherwise act in a manner that negatively affects other users' ability to access and/or use the Service; (iv) harass other users; or (v) collect and/or store usage data, including any individually identifiable user data, about other users of the Service. In the event of any unauthorized use of the Service by an authorized user: (a) Equilar may immediately terminate such authorized user's access to the Service; (b) Equilar may terminate the access through the Internet Protocol ("IP") address(es) from which such unauthorized use occurred; and/or (c) upon Equilar's request, You shall terminate such authorized user's access to the Service.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Equilar Ownership. You acknowledge that as between You and Equilar, the Service and other information obtained through the Equilar website, including without limitation all software, technology, inventions, discoveries, documentation and works of authorship relating thereto, and any and all intellectual property rights related to or derived from the Service, or the manufacture or use thereof (collectively, the "Equilar Technology"), are, and at all times shall remain, the exclusive property of Equilar, and nothing in these Terms shall be construed to transfer to You any ownership interest in or to the Equilar Technology or any part thereof. Equilar reserves all rights to the Equilar Technology not expressly granted to You hereunder and You hereby assign to Equilar all of Your rights, title and interest in and to the Equilar Technology. Further, You hereby irrevocably assign and transfer to Equilar all of the rights, title and interest, including any and all intellectual property rights, in and to any and all improvements, modifications or enhancements that are made, conceived or reduced to practice by You with respect to the Equilar Technology and the manufacture or use thereof. You shall not take or permit any action inconsistent with Equilar's ownership of all right, interest and title in and to the Equilar Technology, including any and all improvements, modifications and enhancements thereto, or which might impair the value of such ownership.
5.2 Client Name. Equilar may use Client's name in Equilar's client lists relating to the Service. Equilar will not, however, use Client's name on the Equilar website or in Equilar marketing materials without first obtaining Client's written consent.
6. WARRANTY DISCLAIMER
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ANY OTHER PRODUCTS AND SERVICE PROVIDED TO YOU HEREUNDER ARE PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE, PERFORMANCE AND RESULTS OF THE SERVICE RESIDES WITH YOU. EQUILAR SPECIFICALLY DISCLAIMS ALL CONDITIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT WITH RESPECT TO THE SERVICE AND OTHER PRODUCTS AND SERVICE PROVIDED UNDER THESE TERMS. EQUILAR MAKES NO WARRANTY THAT THE SERVICE OR THE EQUILAR WEBSITE WILL BE ERROR FREE OR WILL FUNCTION WITHOUT INTERRUPTION.
No Authorized Warranty. No salesperson or other representative of any party involved in the distribution of the Service is authorized to make any warranties with respect to the service beyond those contained in these Terms. Oral statements do not constitute warranties, shall not be relied upon by You, and are not a part of these Terms.
7. LIMITATION OF LIABILITY
7.1 Acknowledgement. You hereby acknowledge that Equilar is not in the business of providing professional advice and that the Service is provided solely for Your own internal research purposes and not intended to substitute for accounting, tax, investment, legal or other professional advice or service. You acknowledge that there is no guarantee with respect to the accuracy, adequacy or completeness of the Service and other information obtained through the Equilar website. You hereby assume full responsibility for any and all decisions with respect to Your business and financial matters and agree to use the Service at Your sole risk.
7.2 No Liability for Business Decisions
(a) Notwithstanding anything to the contrary, You hereby acknowledge and agree that: (i) Equilar solely provides to You the Service to assist You in Your internal research activities but that all responsibility for any investment or business decision shall remain with You; (ii) Equilar does not expressly or by implication recommend or endorse in any manner any company, research institution, analyst, bank, investment company, or other business entity or opportunity; (iii) Equilar does not in any way guarantee, make any representation with respect to, or assume any responsibility or liability for, the truth or accuracy of the whole of any part of the Service or the Equilar website; (iv) Equilar has no responsibility or liability for injury, loss, or damage caused by or alleged to have been caused by any decision made in reliance on the Service.
(b) You shall indemnify, defend and hold harmless Equilar and its officers, directors, shareholders, employees, representatives, agents, successors, and assigns from and against any and all liabilities, losses, damages, expenses and costs (including reasonable attorneys' fees) arising from or relating to: (i) any claim, demand or action relating to any decision, course of action, advice or recommendation made in reliance on the Service; (ii) any dispute with a customer of Yours; (iii) any unauthorized access to or use of the Service; or (iv) any act or omission of You or any of Your authorized users.
7.3 Exclusion and Limitation
IN NO EVENT SHALL EQUILAR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION AND OTHER PECUNIARY LOSS AND COSTS OR LEGAL EXPENSES) INCURRED BY YOU OR ANY THIRD PARTY, ARISING FROM OR RELATED TO THESE TERMS, INCLUDING WITHOUT LIMITATION THE SERVICE, OR USE THEREOF, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, EVEN IF EQUILAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EQUILAR'S TOTAL LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CLAIM OR DAMAGES UNDER THESE TERMS SHALL NOT EXCEED THE AMOUNTS PAID TO EQUILAR DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM OR DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING IS A REASONABLE ALLOCATION OF RISK.
8. TERM AND TERMINATION
8.1 Term. Term. The term of the license granted to You under Section 2.1 is for twelve (12) months from the date specified on the order form and invoice (the "Term"). Thereafter, the Term shall automatically renew for subsequent twelve (12) month periods (the "Renewal Term") unless You notify Equilar in writing thirty (30) days prior to the expiration of the Term or Renewal Term.
8.2 Termination. Equilar reserves the irrevocable right to terminate, without cause or notification, Your use of the Service. Equilar's right to terminate shall be in addition to its right to collect any liquidated damages in accordance with Section 3.3.
8.3 Download Credits. Upon termination or expiration for any reason, You will forfeit any download credits for CustomInsight.
9. MISCELLANEOUS
9.1 Force Majeure. Equilar shall under no circumstances be liable for failure to fulfill its obligations under these Terms for delays in delivery due to acts of God, man-made or natural disasters, earthquakes, fire, riots, flood, material shortages, strikes, delays in transportation or inability to obtain labor or materials through its regular sources. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.
9.2 Severability. If any provision hereof should be held invalid, illegal or unenforceable in any jurisdiction, the parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the parties and all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
9.3 Governing Law. These Terms and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in accordance with, the laws of the State of California, United States, without reference to conflicts of laws principles of California or any other jurisdiction.
9.4 Jurisdiction. The parties agree that any action or proceeding arising out of or related to these Terms shall be brought only in the state and federal courts of the State of California and the parties hereby consent to such venue and to the exclusive and personal jurisdiction of such courts over the subject matter of such proceeding and themselves.
10. ENTIRE AGREEMENT
Entire Agreement. These Terms represent the entire understanding relating to the use of the Service and prevail over any prior or contemporaneous, conflicting, or additional, communications. Notwithstanding the foregoing, in the event of a conflict between these Terms and any Data Base Services Agreement in effect between You and Equilar, the terms of the Data Base Services Agreement shall prevail.
For Equilar Survey Participants
SURVEY TERMS AND CONDITIONS OF USE
1. SURVEY DATA/REPORT
SURVEY PARTICIPANT shall provide EQUILAR compensation data for its most senior executives (generally the top 20 to 25) by no later than June of each year.
2. ADDITIONAL SERVICES
For additional fees, SURVEY PARTICIPANT shall have the right to purchase access to the survey dataset ("Survey Dataset"). The Survey Dataset will provide summary statistics on the pay of senior executives, which will be searchable by company, position, financial performance, and other criteria to allow users to customize their reports. Summary statistics of publicly available data and survey data will be kept separate to completely protect the privately submitted data points. While completely flexible, the online tool will prevent users from backing into private data points by making slight changes to groups of companies included. Access to the Survey Dataset is limited to SURVEY PARTICIPANT users located in the United States and Canada (the "Territory") who have purchased the Survey Dataset. SURVEY PARTICIPANT must purchase a license for users outside the Territory.
3. WORK PRODUCT
The EQUILAR work product, which EQUILAR delivers or makes available to SURVEY PARTICIPANT as described in Sections 1 and 2 above, is provided for the internal use of SURVEY PARTICIPANT and may not be referenced or distributed to any other party without EQUILAR's prior written consent. SURVEY PARTICIPANT shall own the copy of the written work product delivered to SURVEY PARTICIPANT and have the right to use, reproduce and adapt it for internal purposes within SURVEY PARTICIPANT's organization. EQUILAR's work product data are only available for the use of SURVEY PARTICIPANT for purposes of its individual compensation planning and by EQUILAR for purposes of training, quality assurance, research and development, custom research services, and general promotional activities. EQUILAR shall retain all other intellectual property rights (including patents, trade secrets and copyrights) in EQUILAR's work product, including derivative works of it and may use it for any purpose, subject to this Section 3 and Section 5 of these Terms and Conditions of Use.
4. PAYMENT OF FEES
All fees owed by SURVEY PARTICIPANT to EQUILAR shall be due within 30 days from the date of EQUILAR's invoice, unless special arrangements are made and accepted by both parties. Late payments shall be subject to a late charge equal to the lesser of 1% per month or the maximum allowed by law. SURVEY PARTICIPANT shall also be responsible for any tax or similar assessment based upon EQUILAR's charges, if applicable.
5. NONDISCLOSURE
All data submitted by SURVEY PARTICIPANT shall be held in confidence by EQUILAR. EQUILAR agrees to take reasonable precautions, including the same precautions EQUILAR takes to protect its own confidential information, to ensure that EQUILAR does not disclose to any third party any information that SURVEY PARTICIPANT discloses to EQUILAR about SURVEY PARTICIPANT's employees, unless EQUILAR first obtains the consent of SURVEY PARTICIPANT. EQUILAR's nondisclosure obligations shall not apply to information: (a) already known to EQUILAR at the time of disclosure; (b) in the public domain or available to the public; (c) available to EQUILAR from third parties without any nondisclosure obligation to SURVEY PARTICIPANT that is known to EQUILAR; or (d) independently developed by EQUILAR. If any court or regulatory order or other service of legal process requires EQUILAR to disclose information covered by EQUILAR's confidentiality obligation, then EQUILAR may make any disclosure required by law. EQUILAR shall advise SURVEY PARTICIPANT promptly of any such order or service of process and cooperate with SURVEY PARTICIPANT, at SURVEY PARTICIPANT's expense, in responding to it. EQUILAR shall follow the federal antitrust safe harbor guidelines, reporting or providing access only to nonpublic data that is more than three months old, ensuring that at least five SURVEY PARTICIPANT'S report data upon which each disseminated statistic is based, ensuring that no individual SURVEY PARTICIPANT'S data represents more than 25 percent on a weighted basis of a statistic, and aggregating the data so that it will not allow recipients to identify the compensation paid by any particular SURVEY PARTICIPANT.
6. USE OF INTERNET
When conducting surveys, EQUILAR may transmit data over the Internet and communicate with SURVEY PARTICIPANT via e-mail. EQUILAR's Internet and e-mail Internet transmissions may contain confidential survey data. As a general rule, except for using standard virus detection utilities, password protection of certain files, and basic security features built into its Web site, EQUILAR does not encrypt or take other technological security precautions with respect to routine e-mail transmissions. EQUILAR cannot ensure the confidentiality or integrity of data transmitted via the Internet. By participating in a survey covered by these Terms and Conditions of Use, SURVEY PARTICIPANT authorizes EQUILAR to communicate survey data via Internet and e-mail transmissions, and SURVEY PARTICIPANT accepts the risks associated with those transmissions.
7. INDEPENDENT CONTRACTOR
All of the services provided by EQUILAR covered by these Terms and Conditions of Use shall be rendered in EQUILAR's capacity as an independent contractor. None of the terms set forth in these Terms and Conditions of Use shall be interpreted to create any agency, master-servant, employment or any other relationship between SURVEY PARTICIPANT and EQUILAR or any of EQUILAR's employees. EQUILAR shall determine the time, place and manner in which the services are performed. EQUILAR does not accept any fiduciary or trust responsibilities in connection with the performance of the services.
8. WARRANTIES
EQUILAR warrants that all work product developed is that of EQUILAR and does not infringe the copyright or other ownership rights of any other person. SURVEY PARTICIPANT represents and warrants that it has authority to submit data and is responsible for submitting accurate and complete data. To the extent that any of the data contain individually identifiable information, SURVEY PARTICIPANT is responsible for compliance with applicable data privacy laws, including, without limitation, securing any necessary consent from the individuals.
9. LIMITATION OF LIABILITY
The parties agree that they will work in good faith to resolve any disputes that may arise. Each party shall give the other written notice and at least 30 days to cure any alleged breach of these Terms and Conditions of Use. If a dispute cannot be resolved by the parties, the matter shall be submitted to nonbinding mediation before either party pursues any other remedies. The liability of EQUILAR and SURVEY PARTICIPANT, their respective affiliates, employees, and agents, whether arising in contract, tort (including negligence) or otherwise, in connection with any of the work products or services provided subject to these Terms and Conditions of Use, shall in no event exceed the total amount of the fees paid and/or owed to EQUILAR for those work products or services. Nothing in these Terms and Conditions of Use shall exclude or in any way limit either party's liability for fraud, or for death or bodily personal injury to the extent caused by its negligence, or any other liability to the extent the same may not be excluded or limited as a matter of law. In no event shall EQUILAR or SURVEY PARTICIPANT, its respective affiliates, employees, and agents, be liable to the other party for any incidental, special, punitive, or consequential damages of any kind (including, without limitation, loss of income, loss of profits, or other pecuniary loss); or for any losses or expenses resulting from any inaccuracy in or omission from any information or data supplied to EQUILAR in connection with the work product or services provided subject to these Terms and Conditions of Use.
10. GENERAL
Neither party may assign any rights relating to the work product or services subject to these Terms and Conditions of Use to any third party without the other's written consent. Neither party shall be responsible for any delay or failure in the performance of its duties caused by forces or events beyond its reasonable control. The validity and interpretation of the provisions of these Terms and Conditions of Use shall be governed by the laws of California, without regard to any provisions governing conflict of laws, and both parties agree that the exclusive jurisdiction and the proper venue for any action brought hereunder shall be the courts of that state or the federal courts sitting there. A waiver of a breach of any provision hereof shall not constitute a waiver of any other breach hereof. The use of section headings in these Terms and Conditions of Use is for convenience of reference only. The text shall control. Any amendment of these Terms and Conditions of Use must be in writing and signed by both parties. These Terms and Conditions of Use set forth all Terms and Conditions of Use between SURVEY PARTICIPANT and EQUILAR regarding the Survey Participant's compensation data reporting to EQUILAR and EQUILAR's use of that data and replace and supersede all other conversations, writings and agreements of any kind in relation to the subject matter of these Terms and Conditions of Use.
For answers to any questions concerning these Terms please
Write:
Equilar, Inc.
1100 Marshall Street
Redwood City, CA 94063
or E-mail: info@equilar.com
or visit: http://www.equilar.com
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