Version May 4, 2016
1. ACCEPTANCE OF TERMS
1.2 The Terms may be modified by Equilar 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 Equilar'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.
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-sublicensable, limited license to access the Service solely to electronically display and print
reasonable portions of the Service solely for internal research purposes, e.g. benchmarking. Use of the Service for
corporate development or marketing purposes is strictly prohibited. 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 the 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; (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 agree that you will use the Service solely with respect to Your internal research related to that licensed Equilar entity.
2.2 Shared Subscription Program (“SSP”). You acknowledge that your participation in SSP and your access to the Service under that program are solely: (i) on behalf of the named Equilar client; (ii) at Equilar’s discretion and; (iii) may be terminated by Equilar at any time for any reason.
3. FEES, PAYMENT, AND TAXES
3.1 Fees and Payment Terms. You shall pay the Fees set forth in the Equilar Order Form. All Fees will 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 will 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.
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 (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. 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.
5.3 Pay for Performance Analytics. The market peer group information and pay for performance (P4P) scores contained in Equilar's Pay for Performance Analytics product constitute confidential and proprietary information and may not be disclosed to third parties without the express written consent of Equilar.
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 (a) Notwithstanding anything to the contrary, You acknowledge and agree that: (i) 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; (ii) You
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; (iii) 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;
(iv) 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; (v) 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 related to the Service.
7.2. IN NO EVENT SHALL EITHER PARTY 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 A PARTY 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 A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’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. 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 will 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.
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 will 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 will remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties as nearly as may be possible. Such invalidity, illegality or unenforceability will 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 will 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 will be brought only in the state and federal courts of the State of California and the parties 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 Database Services Agreement in effect between You and Equilar, the terms of the Database Services Agreement shall prevail.
1. RESPONSIBILITY OF THE PARTIES
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 (“SURVEY PARTICIPANT Data”). SURVEY PARTICIPANT 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.
EQUILAR will use SURVEY PARTICIPANT Data as part of its summary statistics on the pay of senior executives (“Survey Dataset Product”). The Survey Dataset Product will be available, for a fee, to Survey subscribers and will be searchable by company, position, financial performance and other criteria. EQUILAR will keep summary statistics of publicly available data and SURVEY PARTICIPANT Data separate to protect the privately submitted data points. The Survey Dataset Product is designed to prevent subscribers from backing into private data points by making slight changes to groups of companies included.
2. LICENSE AND OWNERSHIP
Access to the Survey Dataset Product is available for a fee and is subject to EQUILAR’S terms and conditions of use located at Equilar.com (“TOU”). EQUILAR shall own all right and title to the Survey Dataset Product including all associated intellectual property rights.
All SURVEY PARTICIPANT Data 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 SURVEY PARTICIPANT Data. EQUILAR shall not disclose any identifiable information 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 subscribers to identify the compensation paid by any particular SURVEY PARTICIPANT.
4. 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 website, 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 Survey 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.
Neither party may assign any rights relating to the work product or services subject to these Survey Terms and Conditions of Use to any third party without the other's written consent. Neither party will 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 Survey 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 will be the courts of that state or the federal courts sitting there. A waiver of a breach of any provision hereof will not constitute a waiver of any other breach hereof. The use of section headings in these Survey Terms and Conditions of Use is for convenience of reference only. The text shall control. Any amendment of these Survey Terms and Conditions of Use must be in writing and signed by both parties. These Survey 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 Survey Terms and Conditions of Use.
The following terms apply if You access the S&P Service licensed to Equilar by S&P referred to below as the "Licensee Service.” (i) Neither LICENSEE, S&P, their affiliates nor any third-party licensor shall have any liability for the accuracy or completeness of the information or software furnished through the Licensee Service, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages; (ii) Either LICENSEE, S&P, their affiliates or third-party licensors have exclusive proprietary rights in any information and software received; (iii) Subscriber shall not use or permit anyone to use the information or software provided through the Licensee Service for any unlawful or unauthorized purpose; (iv) Subscriber is not authorized or permitted to furnish such information or software to any person or firm for reuse or retransmission without prior written approval of the source of such information or software; (v) Access to the S&P Service(s) is subject to termination in the event that any agreement between LICENSEE and a provider of information or software distributed through the Licensee Service is terminated in accordance with its terms; and “Licensee Customer” shall mean an entity that is a customer of LICENSEE and (a) provides access to the S&P Service(s) to its employees only for their internal use for business purposes; and (b) can access any of the S&P Service(s) only via a password/user ID issued by LICENSEE. “End User” shall mean an individual that is a customer of LICENSEE and (a) whose use of the S&P Service(s) shall be solely for his/her personal non-commercial use; and (b) who can access any of the S&P Service(s) only via a password/user ID issued by LICENSEE.
For answers to any questions concerning these Terms please write:
1100 Marshall Street
Redwood City, CA 94063