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Terms of Use Agreement

EngagedMetrics, owned and operated by EngagedMetrics, Inc, a Colorado corporation (collectively referred to here as “EngagedMetrics”), provides and maintains an Internet Web site (the “Site”) with related tools and processes to create customized employee surveys and obtain survey results and associated services (the “Services”) for use by you (“Member” or “you”). The Services and use of the Site are provided to you under the terms and conditions set forth in the Terms of Use Agreement and any rules or policies otherwise set forth on this Site or published from time to time by EngagedMetrics. The Terms of Use Agreement set forth below and any rules or policies otherwise set forth on this Site comprise the entire agreement between Member and EngagedMetrics and supersedes any and all prior agreements or understandings between the parties.

1. ACKNOWLEDGMENT AND ACCEPTANCE.

PLEASE READ THE FOLLOWING TERMS OF AGREEMENT CAREFULLY. BY COMPLETING THE REGISTRATION PROCESS AND CREATING AN ALPHAMEASURE ACCOUNT, YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE TERMS OF AGREEMENT, INCLUDING ALL WARRANTIES AND PROMISES BY MEMBER. MEMBER HEREBY ACKNOWLEDGES AND WARRANTS THAT MEMBER IS 18 YEARS OF AGE OR OLDER.

2. SERVICE PROVIDED.

EngagedMetrics is providing the basic Services through the Site without charge for Member’s use. Members are allowed to design a customized employee survey free of charge, but must purchase the survey from EngagedMetrics to make it available to their workforce. Said Services include Member’s right, after registration and in full compliance with the Terms of Use Agreement, to use or create employee surveys using the EngagedMetrics system and then make their survey available to their workforce. In exchange for use of the Services and the Site, Member acknowledges Member’s obligations as set forth in the Terms of Use Agreement and agrees to use the Services and the Site in compliance with the Terms of Use Agreement.

3. MODIFICATION TO SERVICES PROVIDED; TERMS OF AGREEMENT.

Member acknowledges and agrees that EngagedMetrics may, with or without notice, modify, delete, or amend the Services and/or Site provided hereunder. Further, Member acknowledges and agrees that EngagedMetrics may further modify, delete or amend the Terms of Use Agreement from time to time, including charging a fee or fees for some services. If Member does not accept the modification, deletion or amendment, Member must terminate Member’s membership at that time. Any and all use of the Site or the Services by Member after the notice is posted shall be deemed to be acceptance of the modification, deletion or amendment (as well as all other terms and conditions) to the Services, Site or Terms of Use Agreement.

4. PAYMENT TERMS.

Member agrees to pay all charges to Member’s account, including any applicable taxes, at the rates in effect when the charges are incurred. EngagedMetrics may change the fees and charges then in effect, or add new fees or charges, by giving Members notice in advance, when the change affects the Member. Member must provide EngagedMetrics with valid credit card (or net 30 days terms if approved) information, and must promptly inform EngagedMetrics of any changes in credit card validity or expiration date. EngagedMetrics will keep Member’s credit card information confidential, and ensure that credit card processing takes place in a secure environment. EngagedMetrics reserves the right to suspend or terminate Member’s account and access to the Services. Member may also purchase EngagedMetrics products or services from an authorized Channel Partner and arrange terms of payment with that Channel Partner. EngagedMetrics reserves the right to suspend or terminate Member’s account and access to the Services. EngagedMetrics reserves the right to terminate Member’s account access at any time.

5. REGISTRATION & PASSWORD.

Member is solely responsible for maintaining the confidentiality of Member’s password and account information. Member shall immediately notify EngagedMetrics of any unauthorized account activity, or any unauthorized use of Member’s email list(s) or any other breach of security known to Member.

6. PRIVACY.

EngagedMetrics is committed to its policy of protecting the privacy and confidential information of the Members.

7. DATA STORAGE.

EngagedMetrics is only obligated to store a Member’s survey data for 60 days past the completion of the Member’s last survey. During this time Members have the ability to export their reports to PDF or download their raw survey data from EngagedMetrics’ servers. Member data can be stored for an additional period at an additional monthly cost.

8. DISCLAIMER OF WARRANTIES.

MEMBER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICE AND THE SITE IS AT MEMBER’S SOLE RISK. THE SERVICE AND THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

TO THE FULLEST EXTENT ALLOWED BY LAW, EngagedMetrics EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE CONTENTS OF THE SERVICES OR THE SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. EngagedMetrics ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN CONTENT.

EngagedMetrics IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY SURVEY OR INVITATIONS TO TAKE SURVEYS OR INVITATIONS TO VIEW SURVEY RESULTS CREATED ON OR THROUGH THE SERVICE NOR IS IT RESPONSIBLE FOR THE RESPONSES SUBMITTED TO ANY SURVEY REQUESTS OR FOR THE RESULTS GENERATED BY SURVEY RESPONSES. EngagedMetrics DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RELIABILITY OR ACCURACY OF THE REGISTRATION INFORMATION SUPPLIED TO EngagedMetrics NOR THE RESPONSES OR INFORMATION SUPPLIED BY PANELISTS TO MEMBERS IN RESPONSE TO SURVEYS. EngagedMetrics DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE CONSEQUENCES OF THE USE OF ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS NOR DOES EngagedMetrics WARRANT THE CORRECTNESS, USEFULNESS, RELIABILITY, ACCURACY OR OTHERWISE OF ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS. EngagedMetrics IS NOT RESPONSIBLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION OR OTHER LOSS RESULTING FROM USE OF OR RELIANCE IN ANY WAY ON ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS CREATED ON OR THROUGH THE SERVICE OR THE SITE. IT IS SOLELY MEMBER’S RESPONSIBILITY TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY SURVEYS, SURVEY RESPONSES, SURVEY RESULTS OR OTHER INFORMATION RECEIVED WHILE USING THE SERVICE OR SITE.

EngagedMetrics MAKES NO WARRANTY THAT THE SERVICE OR SITE WILL MEET MEMBER’S REQUIREMENTS OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, ERROR-FREE, ACCURATE OR RELIABLE; NOR DOES EngagedMetrics MAKE ANY WARRANTY AS TO ANY INFORMATION THAT MAY BE OBTAINED THROUGH THE SERVICE OR SITE OR THAT DEFECTS IN THE SOFTWARE FOR THE SERVICE WILL BE CORRECTED OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

MEMBER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICE OR SITE IS DONE AT MEMBER’S OWN DISCRETION AND RISK AND THAT MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.

EngagedMetrics MAKES NO WARRANTY REGARDNG ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH OR BASED UPON THE SERVICE OR THE SITE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MEMBER FROM THE SERVICE OR SITE OR THROUGH THE SERVICE OR SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

9. LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NEITHER EngagedMetrics NOR ANY PARENT ENTITIES, SUBSIDIARIES, AFFILIATES, OFFICERS OR EMPLOYEES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF MEMBER’S ACCESS TO, USE OF, INABILITY TO USE, OR RELIANCE ON THE SERVICE OR ANY SURVEYS, SURVEY RESPONSES OR SURVEY RESULTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF MEMBER IS DISSATISFIED WITH THE SERVICE, THE MATERIALS AVAILABLE ON OR THROUGH THE SERVICE OR THE SITE, OR WITH ANY OF THE TERMS OF AGREEMENT, MEMBER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE AND LEAVE THE SITE IMMEDIATELY.

10. OTHER PROHIBITED USES.

Member agrees not to transmit through the Service or the Site any pornographic, obscene, offensive, threatening, harassing, libelous, hate-oriented, harmful, defamatory, racist, illegal or otherwise objectionable material or content. Member shall not send any transmission that attempts to hide Member’s identity or represents Member as someone else. Any attempt by Member to transmit, publish or distribute material or content that promotes, provides or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group is strictly forbidden. Member specifically agrees not to use the Service or the Site to send any materials, including surveys and requests to take surveys, to any persons under 18 years of age unless and until the member has taken and follows all necessary action and compliance pursuant to provincial/state and federal laws. Member agrees not to upload or distribute in any way any files that contain viruses, corrupted files or any similar software or programs that may damage the operation of anyone else’s computer, the Service or the Site. Member agrees not to interfere or disrupt networks connected to the Service and the Site. Any attempt by Member to gain unauthorized access to any computer system, including accounts, lockers or databases maintained by and for EngagedMetrics, is strictly forbidden. Member agrees to comply with all applicable laws relating to such conduct. If Member engages in any activity set forth in this paragraph or violates any terms or conditions of the Terms of Use Agreement, Member’s account will be terminated and use of the Service and Site prohibited. EngagedMetrics will report such conduct to the appropriate authorities and turn over any and all information, regarding such activity to appropriate persons or entities.

11a. PROPRIETARY RIGHTS.

EngagedMetrics owns the content including the graphics, names, text, survey content, software, music, videos, sound, pictures, compilations, survey templates, surveys, page layout, design, processes, procedures or other material contained in the Service and the Site to the extent such content is provided and/or designed by EngagedMetrics. It is all protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. No one may copy, reproduce, distribute in any way, or decompile, reverse engineer or disassemble the content. Member is permitted the limited license to use the content of the Service and the Site as authorized herein to create surveys and view survey responses and survey results for Member’s personal use as an end product only, and Member must at all times maintain EngagedMetrics’ copyright symbol on the product in any form or medium. Member owns its surveys, survey responses, survey results and related survey data (“Member’s Content”), and Member assumes the entire risk of disclosing Member’s Content to third parties. Modification or use of EngagedMetrics’ content in any prohibited way is a violation of copyright and other proprietary laws. No one may copy, reproduce, transmit, post, distribute or create derivative works from this Site without prior express authorization.

11b. NO MISAPPROPRIATION OR MISUSE OF NAMES, MARKS, OTHER PROPRIETARY MATERIAL.

Member agrees not to use, misuse or misappropriate any brand names, trademarks, service marks, patents, images, text or other proprietary material or content of another on or through the Service or the Site. If Member uses any such proprietary material or content, by doing so, Member warrants that Member has the right and authority to do so.

12. LINKS AND ADVERTISERS.

EngagedMetrics may provide advertising space and/or links and pointers to Internet sites maintained by third parties. EngagedMetrics has not reviewed all of the third party sites nor reviewed any products or services they may provide. EngagedMetrics is not responsible for nor does it endorse the contents or any products or services of such third parties or their sites. EngagedMetrics DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS OR SERVICES OFFERED OR SUGGESTED BY THIRD PARTIES ON THE SITE. EngagedMetrics DOES NOT ENDORSE OR OTHERWISE WARRANT OR GUARANTEE THE PRODUCTS OR SERVICES THAT ARE EITHER ADVERTISED ON THE SITE OR CONNECTED BY LINK.

13. TERMINATION.

These terms of Agreement may be terminated by either party hereto at any time. EngagedMetrics shall not be liable to Member or any third party in any manner for termination of the Service. In the event Member should become dissatisfied with the Terms of Use Agreement or any modifications thereof, or with the Service or the Site, Member’s only recourse is to discontinue use of the Service, terminate the membership and give notice of these actions. Upon termination, Member’s right to use the Service and the Site cease immediately and EngagedMetrics shall have no obligation whatsoever to forward any surveys, survey responses, survey results or refunds of survey fees to the Member.

14. INDEMNIFICATION.

Member agrees to defend, indemnify and hold harmless EngagedMetrics, its parent entities, subsidiaries, affiliates, officers, and employees, for any and all claims and demands, including attorney’s fees, due to or arising from Member’s use of the Service, surveys, survey responses, survey results and any other conduct related in any way to the Service or the Site, including but not limited to breaching any warranty or provision contained in these Terms of Use Agreement.

15. JURISDICTION.

The Terms of Use Agreement and the relationship between Member and EngagedMetrics shall be treated as if entered into and executed in the State of Colorado and shall be governed and construed in accordance with the laws of the State of Colorado, without regard to conflict of law principles. EngagedMetrics makes no representation that the materials and content on the Site or relating to the Services are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is strictly forbidden. Those who access the Services or the Site from other locations do so on their own initiative and at their own risk and are responsible for compliance with local laws. Any claim or demand under the Terms of Use Agreement must be made within 1 year of the occurrence.

16. NATURE OF AGREEMENT.

Member agrees that the registration procedure, account set-up and subsequent activation of the “Submit” button constitute agreement to the Terms of Use Agreement. Further, the Terms of Use Agreement is the entire and only agreement between the parties and supersedes any prior or other understandings, representations or warranties. Member agrees that each use of the Services and the Site reaffirms Member’s acknowledgment and agreement to the Terms of Use Agreement.

17. GENERAL PROVISIONS.

In any dispute arising from the relationship between Member and EngagedMetrics or the Terms of Use Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs. The failure by EngagedMetrics to enforce any right or provision under the Terms of Use Agreement shall not constitute a waiver of that provision or any other provision of the Terms of Use Agreement. If any provision of the Terms of Use Agreement shall be determined to be invalid or unenforceable by a court of competent jurisdiction, the other provisions of the Terms of Use Agreement shall remain in full force and effect.