YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS BEFORE ACCESSING THE STRATEGIC PROFILING® SURVEY AND RESULTS ("Survey Services") MADE AVAILABLE BY BRAND VELOCITY, INC. ("Brand Velocity"). BY CLICKING THE [I ACCEPT] BUTTON AND PROCEEDING TO USE THE Survey Services, YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS ("AGREEMENT"). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT ACCESS OR USE THE SURVEY SERVICES. If you do not agree to these terms and conditions, then you will not be allowed to access and use the Survey Services.
1. Right to Access and Use. Brand Velocity makes the Survey Services available to individuals for their own personal use and to corporate customers with whom Brand Velocity has an agreement. Brand Velocity grants to You a personal, non-exclusive, non-transferable, non-assignable license to access and use the Survey Services for your own personal use only. You are not authorized to use the Survey Services and then provide the results of the Survey Services to any other party who provides coaching or consulting services. Brand Velocity provides consulting and coaching services, and you may contact us for further information. The software used to provide the Survey Services will reside on equipment owned or operated on behalf of Brand Velocity, and your right to access and use the Survey Services will not entitle you to receive a copy of the software used to provide the Survey Services ("Software"). You may not, except as expressly permitted in this Agreement, copy, modify, adapt, reverse engineer or create derivative works of the Software or any portion of the Survey Services or remove any copyright or other proprietary rights notices there from.
2. Ownership of the Survey Services. As between you and Brand Velocity, Strategic Profiling® and all related intellectual property rights in and to Strategic Profiling® are owned by Brand Velocity. Brand Velocity reserves all rights not expressly granted in this Agreement. You grant Brand Velocity the right to use all information you submit to the Site through use of the Survey Services or otherwise for Brand Velocity business purposes, so long as your personal identity is not disclosed to any third party without your authorization.
3. Confidential Information. You acknowledge and agree that the Software and other related information, including without limitation the content of the Survey Services, disclosed or delivered to you in relation to this Agreement, including any results or reports from your use of the Survey Services, represent Brand Velocity and its suppliers' confidential and proprietary information ("Brand Velocity' Information"). You agree to keep Brand Velocity Information confidential by exercising the necessary care required to prevent its disclosure. Notwithstanding the above, you will not disclose, divulge, distribute, publish, transmit or transfer Brand Velocity Information to any third party or use Brand Velocity Information for any purpose whatsoever other than as expressly authorized by this Agreement. Your obligations with respect to Brand Velocity Information deemed "trade secret" under applicable law shall remain in effect for as long as Brand Velocity Information remains a trade secret. Your obligations with respect to Brand Velocity Information that is not deemed to be a trade secret shall remain in effect for a period of three (3) years following your receipt of Brand Velocity Information. Your obligations set forth under this Section shall survive termination of this Agreement.
4. Fees and Payment. Your access and use of the Survey Services for your personal use is free of charge. You agree Brand Velocity may charge you its then-current fees for any use of the Survey Services other than pursuant to this Agreement.
5. Termination. Brand Velocity may terminate your license to the Survey Services without notice for Your failure to comply with this Agreement. You may terminate this Agreement by no longer accessing the Survey Services or using the Results. Upon any termination of this Agreement, You will no longer be authorized to access the Survey Services or use any of the Results.
6. No Warranties. THE SOFTWARE AND SURVEY SERVICES ARE LICENSED TO YOU ON AN "AS IS" BASIS AND BRAND VELOCITY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT Brand Velocity AND ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, SHALL HAVE NO LIABILITY FOR ERRORS OR OMISSIONS IN THE OUTPUT OF THE SOFTWARE, SUCH OUTPUTS INCLUDING, WITHOUT LIMITATION, THE QUALITY OR ACCURACY OF ANY SCREEN DISPLAYS OR REPORTS, IN THE TRANSMISSION AND RECEPTION OF SUCH DATA, AND IN THE PROCESSING OF SUCH DATA BY THE SOFTWARE.
7. Limitation of Liability. IN NO EVENT WILL BRAND VELOCITY OR ITS RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS OR REPRESENTATIVES, BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL OR PROFIT IN ANY WAY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SURVEY SERVICES, BRAND VELOCITY SOFTWARE OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY SOFTWARE HEREUNDER, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. IN NO EVENT WILL BRAND VELOCITY' LIABILITY FOR DIRECT DAMAGES RELATED TO THE Brand Velocity SOFTWARE OR THIS AGREEMENT EXCEED THE AMOUNT PAID TO BRAND VELOCITY FOR YOUR ACCESS AND USE OF THE BRAND VELOCITY SURVEY SERVICES AND RELATED SOFTWARE.
8. Injunctive Relief. You acknowledge that remedies at law may be inadequate to provide Brand Velocity with full compensation in the event of your material breach of the license or any confidentiality obligations contained herein or any intellectual property rights of Brand Velocity, and that Brand Velocity shall therefore be entitled to seek injunctive relief in the event of any such breach.
9. Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of Georgia of the United States of America, without regard to its rules regarding conflicts of law. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. You agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Georgia.
10. Arbitration. The parties agree that, except as otherwise provided below, they shall first attempt to resolve any dispute, claim or controversy relating in any way to this Agreement (a "Dispute") between an officer of each party who has authority to resolve the Dispute. If any Dispute cannot be settled in this manner within sixty (60) days of written notice being served by a party on the other party, the parties agree that the Dispute may be settled by arbitration in accordance with the Commercial Arbitration Rules of American Arbitration Association ("Rules") in Atlanta, Georgia, with judgment upon the award rendered by the arbitrator to be entered in any court of competent jurisdiction. Any arbitrator selected pursuant to the Rules will conduct arbitration and the arbitrators will have a background or training in computer law, computer science, contract law and intellectual property. The arbitrators may award attorney's fees and costs to the prevailing party. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim, conservatory or equitable relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator(s).
11. Waiver/Severability. The failure of Brand Velocity to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is for any reason held unenforceable or invalid then this Agreement shall be construed as if such provision were not contained in this Agreement.
12. Assignment. You cannot assign, sublicense, or transfer this Agreement. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void.
By Clicking "I Agree", you represent and warrant that you have the authority to accept this Agreement on behalf of yourself and the company you represent, and will abide by and comply with the terms and conditions set forth in this Agreement.