By using the Services, you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these terms. In that case, “you” and “your” will refer to that organization.
You may use the Services only in compliance with these Terms. You may use the Services only if you have the power to form a contract with Percept Research and are not barred under any applicable laws from doing so. The Services and fees we charge for the Services may change over time. We may stop, suspend or modify the Services at any time at our discretion and without prior notice to you.
By accessing a Survey, you have agreed to pay the purchase price set by us for the license to access that specific Survey. Percept Research offers multiple templates or versions for each fielding year of each Survey, and we can also customize a Survey. If you desire to use a different Survey or to customize a Survey, you must purchase a separate license for such Survey from Percept Research or pay us the applicable fees for customization according to our pricing schedule. We reserve the right to suspend or refuse to field a Survey or deliver data, reports or other deliverables to you if you are not current (have not paid) on any outstanding amounts owed to Percept Research.
Although we make reasonable efforts to make each Survey compatible with your or your Participants’ computers or electronic devices, and we will assist Participants with gaining access as part of the Services, Percept Research makes no, and disclaims any, warranty or representation, express or implied, that the Survey will be compatible with or work with every computer or electronic device, and makes no, and disclaims all, express or implied warranties of merchantability and fitness for a particular purpose.
By accessing the Survey, you agree to the preceding and following terms and conditions:
1. USE RIGHTS. Subject to these Terms and any other agreement between you and Percept Research, you will be granted non-exclusive access to the Survey. You do not acquire any intellectual or other property rights in the Survey or any associated software, systems, documentation or other materials. All such rights and interests are the exclusive property of Percept Research and/or its licensor. These Terms apply also to any updates, supplements, or support services for the Survey, unless other terms accompany those items. If so, those other terms apply. The license granted to you herein does not allow you to sell, distribute or commercially exploit the Survey, nor does it allow you to reuse any portion of or all of any Survey, whether during the same or a later fielding year.
2. INTELLECTUAL PROPERTY RIGHTS. You acknowledge and agree that the Survey (along with any instructions, manuals, coding algorithms and other technical information) belongs to Percept Research and is copyrighted, confidential, and proprietary to Percept Research, and access is granted to you only for use by you and your students, subjects, and Survey participants (collectively your “Participants”). The Survey is not for public release. You agree to not distribute, transmit, sell, assign or make available the Survey, or any part thereof, to any other person or entity except only to you and your Participants, and then only during the fielding year you have paid for. You agree that the Survey constitutes confidential information of, and is a valuable trade secret of, Percept Research and will not be disclosed by you to any third party (except to the extent required by law) and will be safeguarded by you with not less than the same degree of care exercised by you to protect your own trade secrets. You shall not remove or alter any copyright or proprietary notices included in or with the Survey. You agree to not use any of the Survey or format thereof or concepts therein, or any of the code or processes thereof, including any reverse engineering of the Survey, to create a different or similar questionnaire, survey, product or service.
3. ACCEPTABLE USE AND ACCESS. The Survey may not be used by you for more than one year and may not be used for any purpose other than to gather and organize the data sought through the Survey. You will immediately notify Percept Research if you believe access to or use of the Survey or any portion thereof has been or is being used by you or somebody else in violation of these Terms.
4. NO REDISTRIBUTION. Except for the data gathered during a Survey and the reports that we produce for you, which will remain your property and which you may use as you see fit, you may not redistribute any material (electronic, paper, or otherwise) that is part of the Survey, and you will not allow any use of the Survey that will infringe upon the copyright or other proprietary right of Percept Research. You may not use the Survey or any portion thereof to create a different or similar product, whether or not it competes or interferes with the business of Percept Research with respect to the use of the Survey.
5. TERM AND TERMINATION.
- Term. The term of your right to access the Survey shall continue from the date you order access to the Survey until the expiration date (if any) as listed on any document delivering the Survey to you, or 365 days following the date you order access to the Survey, whichever is earlier; provided that your right to access the Survey shall terminate on the date of any breach of this Agreement by you.
- Termination for Breach. In the event your right to access the Survey is terminated for breach (i) you shall no longer thereafter access or permit access to the Survey and shall destroy and may not use any software in your possession or under your control and any data or materials retrieved from the Survey, and (ii) Percept Research shall have the right to any legal remedy available, including without limitation, suspension of delivery of, or deactivation of, the Survey, and (iii) you will be liable to Percept Research for all of our damages and expenses related to the breach, including without limitation lost revenues, ancillary expenses such as preparing for Survey launch (editing custom questions, project management, etc.), reputation management expenses, and any mitigation, forensic, investigation, consulting or legal fees related to the breach .
- On any termination hereof, the Intellectual Property Rights, No Distribution, Limited Warranty and Disclaimer of Warranty, Limitation of Liability, and Dispute Resolution sections of these Terms shall survive such termination.
6. PRIVACY. Percept Research will not, for any competitive purpose, make use of any of your or your Participants’ information captured by the Survey. Percept Research makes no representation as to whether any federal, state or local laws may regulate your use of the Survey or require you to obtain consent from any person (or, in the case of minors, the parent or guardian of such person) for your use of information acquired from the Survey. You agree to abide by all of the terms of our Data Confidentiality and Usage Policy.
7. ACCESS AND USE. Percept Research will make reasonable efforts to make each Survey compatible with most hardware and operating platforms, and as part of the Services we will assist you from time to time regarding hardware and software compatibility with the Survey, however PERCEPT RESEARCH SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR DETERMINING THE COMPATIBILITY OF ANY HARDWARE OR SOFTWARE NOT SUPPLIED BY PERCEPT RESEARCH WITH THE SURVEY AND PROVIDES NO WARRANTY WITH RESPECT TO THE OPERATION OF SUCH HARDWARE OR SOFTWARE WITH THE SURVEY.
8. LIMITED WARRANTY AND DISCLAIMER OF WARRANTY. Percept Research warrants that it has all rights necessary to enter into these Terms and to provide access to the Survey. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, THE SURVEY IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE WARRANTIES IN THESE TERMS ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, PERCEPT RESEARCH DOES NOT WARRANT THAT THE SURVEY WILL BE ERROR-FREE OR WILL BE AVAILABLE FOR USE AT ALL TIMES. PERCEPT RESEARCH MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, CORRECTNESS, RELIABILITY, CURRENCY OR COMPLETENESS OF THE INFORMATION REQUESTED FROM YOU OR YOUR SUBJECTS IN THE SURVEY OR THE RESULTS OF YOUR USE OF THE SURVEY OR THE INFORMATION OBTAINED FROM THE SURVEY, EVEN IF ASSISTED BY PERCEPT RESEARCH.
9. LIMITATION OF LIABILITY. THE MAXIMUM LIABILITY OF PERCEPT RESEARCH ARISING OUT OF ANY CLAIM RELATED TO THE SURVEY WHETHER IN CONTRACT, TORT OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY YOU TO PERCEPT RESEARCH FOR ACCESS TO THE SURVEY. IN NO EVENT SHALL PERCEPT RESEARCH BE LIABLE TO YOU FOR ANY LOST PROFITS OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES RELATED TO THE USE OF THE SURVEY, ANY INFORMATION OBTAINED THEREFROM OR FROM PERCEPT RESEARCH’S FAILURE TO PERFORM ITS OBLIGATIONS UNDER THESE TERMS, REGARDLESS OF WHETHER PERCEPT RESEARCH IS DEEMED NEGLIGENT, EVEN IF IT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Place. The place where this agreement is formed and where all services to be supplied by Percept Research will be deemed performed is the Percept Research offices located at: 401 North Tryon Street, 10th Floor; Charlotte NC 28202.
- Assignment. You may not assign this Agreement, or sublet, assign or grant to others any rights granted hereunder, or grant or permit anyone other than yourself or your Subjects to access the Survey without the prior written consent of Percept Research, which may be granted or withheld in Percept Research’s sole discretion.
- Taxes. Except to the extent that you are tax-exempt as to a particular tax payable, you are responsible for any sales, use, VAT, personal property or other local taxes (except those based on Percept Research’s income) imposed on the use of or access to the Survey.
- Waiver. Failure to enforce any provision of these Terms shall not be construed to be a waiver of such provision.
- Force Majeure. Neither party shall be liable in damages or have the right to terminate this agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its reasonable control including, but not limited to acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, acts of terrorism and/or any other cause beyond the reasonable control of the party whose performance is affected.
- Interruption of Electronic Access. Percept Research shall not be liable or deemed in default of these Terms for any failure, delay or interruption in the use of the Survey, or any failure, degradation or delay of any equipment or telecommunications, resulting from any cause or circumstance beyond the reasonable control of Percept Research.
- Entire Agreement. These Terms constitute the entire agreement between the parties hereto with respect to its subject matter and supersede any and all previous and contemporaneous understandings or agreements between the parties with respect to the same subject matter and may not be amended, except in writing signed by the parties.
- Severability. If any provision of these Terms is found invalid or unenforceable pursuant to a decree or decision of a court of competent jurisdiction, the remainder of these Terms shall remain valid and enforceable according to their terms.
11. DISPUTE RESOLUTION.
- Controlling Law and Jurisdiction.These Terms will be interpreted in accordance with the laws of the State of North Carolina (“NC”) and the United States of America (“USA”), without regard to their conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a federal or state court located in Charlotte, NC for any actions for which the arbitration provision set forth below does not apply.
- To resolve any Dispute (defined hereinbelow) quickly and economically (and particularly, to avoid unnecessary legal fees), and to preserve our privacy and ongoing business relationships, you and we intend that any Dispute shall be settled through non-binding mediation or binding arbitration.
- Mediation. If any claim, controversy, issue or dispute among you and Percept Research relating your use of the Services or to these Terms or any breach thereof, including without limitation any claim that this agreement is invalid, rescinded, voidable or void ("Dispute"), is not settled by direct discussions within thirty (30) days after written notice of the Dispute, you and we agree first to try in good faith to settle the Dispute by one round of non-binding mediation under the Commercial Mediation Rules of the American Arbitration Association ("AAA"), in Charlotte, NC, USA.
- Arbitration. If we fail to settle a Dispute through mediation, it will be settled by binding arbitration before a mutually agreed upon arbitrator pursuant to the Commercial Arbitration Rules of the AAA, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. If we fail to agree on an arbitrator, the AAA office nearest to Raleigh, NC shall assign an arbitrator. The arbitration shall take place in Charlotte, NC. Judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof. You agree that you and Percept Research each are waiving the right to a trial by jury or to participate as a plaintiff as a class member in any class action proceeding. Further, unless agreed in writing by both parties, the arbitrator may not consolidate more than one person’s claims and may not preside over any form of class action proceeding.