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Use of this Website and any Information or Materials
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Energage, LLC makes efforts to try to assure that the information it presents in the portions of the content it authors on the Website is accurate. Energage, LLC cautions, however, that because of the volume, complexity of the material, the ever changing laws and regulations and court decisions, and significant state by state (and sometimes community to community) differences, and because Energage, LLC communicates information provided and created by advertisers, consumers, software developers, publishers, marketing agents, resellers and other third parties, Energage, LLC may have little or no control over the accuracy of such information, and regardless of any control, Energage, LLC makes no guarantee or representation as to such information, and is not responsible for the information, including its accuracy, currency, content, quality, copyright compliance or legality, or for any resulting loss or damage.
No Warranty, No Liability, Indemnification
ENERGAGE, LLC makes no representations regarding the availability and performance of its Website. You hereby acknowledge that any use of the Website and reliance upon any Materials shall be at your sole risk and that Energage, LLC shall not be liable for any loss of data, lost profits or any other damages or losses resulting from such use.
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ENERGAGE, LLC reserves the right to revise any or all of the Materials on the Website and/or to modify any features, specifications, or materials without notice.
1. Welcome to Energage.
Thank you for using our products and services (collectively, “Services”). The Services are provided by Energage, LLC (“Energage” or “us”), located at 397 Eagleview Boulevard, Suite 200, Exton, Pennsylvania 19341, United States. By using our Services, you and your company (“Company”) are agreeing to these terms and you and Company may be used interchangeably throughout these terms. Please read them carefully. We describe several of our Services below, but we also have Services not described below and we may develop other Services in the future so sometimes additional terms or product requirements (including eligibility requirements) may apply. Additional terms will be available with the relevant Services, and those additional terms become part of your agreement with us if you use those Services.
2. Top Workplaces Program.
a). Participants in the Top Workplaces program (hereinafter “Program”) authorize us to conduct an evaluation of the relationship between the participating Company and its employees. This evaluation is based entirely upon the confidential survey responses of the Company’s employees. Participation in the Program is purely voluntary and there is no charge to participate, excluding a paper survey fee for companies that require paper surveys. Participation, however, may be limited by a particular publication, in which case such requirements will be posted on individual publisher pages located at topworkplaces.com. Additionally, each Company must complete and submit all required sections set forth on the “Survey Tracker” website or application and hereby consents to a site visit performed by us to verify the survey results and other Collected Information (as defined below).
b). Electronic surveys will be distributed by us directly to Company’s employees’ email addresses and paper surveys will be distributed by Company through a single point of contact, together with postage-paid envelopes for return of the survey to us. Survey responses received after the survey due date that we specified in the “Survey Tracker” application may not be included in Company’s survey, however, we may decide to include tardy data in our sole discretion.
c). At the end of the survey period, a Company’s results are evaluated. High scoring Companies will be named as a “Top Workplace” by us and/or one or more of our publishing partners in a print and/or online list (the “List”) and the List may be published or distributed in one or more newspapers, magazines, periodicals, and/or websites.
d). All companies participating in the Program that achieve the minimum response rate will receive a complimentary summary report of their own employees’ confidential survey responses. Companies that participate but are not named a Top Workplace or choose not to be evaluated from designation as a Top Workplace are not disclosed publically as participants. All results are based solely upon the quantitative analysis of the employee survey responses and under no circumstances is any payment or gratuity of any kind accepted in exchange for being named as a Top Workplace.
3. Prohibited Activities.
a). You also hereby agree (i) to permit only authorized users to use and gain access to the Services and you shall ensure each user complies with the terms hereof, (ii) not to make the Services available to any third party, including, without limitation, in any form by rental, service bureau, hosting, time sharing arrangement, or demonstrate the Services to any third party, (iii) to use your best efforts to cooperate with and assist us in identifying and preventing any unauthorized use, copying, or disclosure of the Services, (iv) not to reverse engineer, disassemble, reverse compile, or otherwise attempt to obtain the source code of the Services, or (x) not to copy, reproduce (in whole or in part) or develop a similar or competing product to the Program or the Services and you hereby agree that any attempt to utilize any portion of the Program, the Services and/or any content or work product contained therein is strictly prohibited.
b). You hereby agree and acknowledge any attempt, directly or indirectly, to influence any survey responses or any other results in any of the other Services in any way is strictly prohibited. Furthermore, neither you nor the Company or its agents or employees may collect or review the completed employee surveys. Failure to comply with the prohibitions set forth herein may result in Company’s immediate disqualification from the Program. In addition to the foregoing, below is a non-exclusive list of examples of situations that may lead us to disqualify you from the Program: (i) providing inaccurate or incomplete information including, without limitation, Company Contact Information (as defined below), the number of employees, or other Company information, (ii) failure to meet the number of required survey responses (equal to the greater of 30 employees or thirty-five percent (35%) of Company’s total workforce, (iii) engaging in measures to incentivize, coerce, or solicit specific survey responses, (iv) five percent (5%) or more of employees indicating that they felt pressured to respond positively to the survey or specific question, or (v) survey results deemed suspicious in our sole discretion. Any decision to disqualify a Company from the Program shall be in our sole discretion and you hereby acknowledge and agree that you have no claims or rights against us and disclaim any and all liability against us as a result of any decision that we make in this regard.
c). Your violation of this prohibited activities section will result in reputational harm to us and our partners and impair our ability to successfully operate the Program and our other Services and, for this reason, you hereby acknowledge and agree that any and all damages resulting from such failure shall be shall be deemed direct damages for purposes of these terms.
4. Other Products and Services.
We strive to continually improve our Services and from time to time we may add or remove functionalities or features, and we may suspend or stop a Service altogether. Furthermore, we may add new Services in the future that are intended to be governed by these terms. Set forth below is a description of some of our other Services.
a). Workplace Survey. Workplace Survey (e.g. “Management Intelligence Package”) is a “for-fee” product that provides Company greater access and insight into Company’s survey results. Survey results are offered by us through Software provided through our website and downloadable reports in Microsoft Word®, Adobe PDF®, and Microsoft PowerPoint® formats.
b). Workplace Pulse. Workplace Pulse is a “for-fee” product that provides Company more expansive survey and reporting options in real-time.
c). Consulting Services. Our consulting services (e.g. “Expert Support Package”) are available on a “for-fee” basis to provide you with more detailed analysis on the results and responses of your survey, how to improve the satisfaction of your employees, and how to ask the best questions in the future to truly engage your employees.
d). Catalytic Coaching. A system to facilitate two-way conversations between managers and employees that help employees manage their careers and align efforts with organizational goals.
5. Content in our Services.
a). The Services we provide can only be provided effectively if you allow us to collect certain information through the Software or the relevant surveys. Otherwise, the results of our Services would be meaningless. As a result, you hereby agree and acknowledge that we will collect information about Company and its employees through the Services which we refer to as “Collected Information”. Collected Information includes, first and foremost, the responses we collect from your employees’ participation in our surveys. These responses include the actual scores to each survey statement or question and any free-text comments. Finally, Collected Information also includes information provided by Company when signing up for our Services or when submitting information via the “Provide Contact Info” page of our website or Software. We typically collect names and contact details of employees including email addresses so we can directly communicate and send the survey and applicable results to each employee.
b). We use this Collected Information to compile and score participating Companies in the Program, provide aggregated results to a Company with the summary or more detailed results reports. We also reserve the right to utilize the Collected Information and provide such information to third parties for research and analytics purposes including, without limitation, benchmarking purposes, provided that Company and its employees are not identifiable.
c). Additionally, use of the Services are subject to our privacy policies (located here: https://www.energage.com/privacy/ and here: http://topworkplaces.com/privacy-policy.php, which are incorporated herein and made a part hereof (collectively, the “Privacy Statement”). If you object to your information being used in the manner set forth in the Privacy Statement, you should discontinue use of the Services and notify us immediately. We reserve the right to deny access to the Services to anyone at any time and for any reason. Furthermore, you acknowledge and agree that we have no obligation to retain Collected Information after termination of your use of the Services and that Collected Information may be irretrievably deleted 30 days after termination of your use without any liability to us.
6. About Software in our Services.
When a Service requires or includes downloadable software or software available over the Internet, we provide you a personal, worldwide, non-assignable and non-exclusive license to use the software provided to you by us as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by us, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission. You will be responsible for providing your own Internet access computer equipment, and networks needed to access any associated Software.
Some of the Services are provided free-of-charge and others are not. For those that require payment, all Services shall commence upon our prompt receipt of the requisite fees, which are also non-refundable. Your fees must be processed prior to the expiration date of any license (generally one year after the start date) in order for the license updates to be performed and the license to use the Services to be extended. In addition to the fees required hereunder, you are responsible to pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated hereunder, excluding income taxes on our net profits. You shall reimburse us for the amount of any such taxes or duties paid or incurred directly by us as a result of this transaction. Late payments will incur interest at the rate of 1.5% per month (or the highest lawful rate of interest allowed if lower) until paid.
8. Confidentiality, Privacy and Security.
a). Each party agrees not to disclose and will protect the other’s Confidential Information (as defined herein) disclosed in connection herewith from unauthorized dissemination and use with the same degree of care that such party uses to protect its own like information, but in no event using less than a reasonable degree of care to protect such information. Neither party will use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of the Agreement. For purposes hereof, Confidential Information shall mean all nonpublic and proprietary information of a party, whether transferred orally, visually, electronically, or by other means, and includes, without limitation, the terms of this Agreement, financial, marketing, research and development, technical and other information, our current and future Services including, without limitation, all surveys and survey questions, and software. In the event that either party is required by law, regulation, legal process or court order to disclose any Confidential Information of the other, the disclosing party shall promptly notify the other in writing prior to making such disclosure in order to facilitate that party to seek a protective order or other appropriate remedy from the proper authority. Both parties agree to cooperate with the other in seeking such court order or other remedy, and further agree that if a court order or other remedy is not successfully obtained the receiving party will furnish only that portion of the other party’s Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to the Confidential Information.
b). In addition, each party shall comply with all applicable and relevant laws including, without limitation, state and federal privacy laws, and the CAN-SPAM Act. We have taken commercially reasonable actions, including encryption and firewalls, to ensure that Company and its employees’ personal information is disclosed only to those designated by Company. However, Company acknowledges that the Internet is an open system and we cannot and does not warrant or guarantee that personal information will not be intercepted by third parties. We disclaim any liability for interception of any data or electronic communications. You are solely responsible for maintaining the confidentiality of any password or other identifier you use to access the Software and the Services, and agree that we will have no obligations with regard to the use by third parties of such password or other identifier. We shall also not be responsible for any breach of security caused by your failure to maintain the confidentiality of your password or other identifier.
You acknowledge that the Services are proprietary to us and are protected under United States copyright law and international treaties. You further acknowledge and agree that, as between you and us, we own and shall continue to own all right, title, and interest in and to the Services including, without limitation, any associated intellectual property rights under copyright, trade secret, patent, or trademark laws. Your use of the Services does not grant you any ownership interest in or to, or any other right license, or interest in, the Services including, without limitation, the documentation, associated software, survey questions, and/or survey materials. You and Company hereby grant us a royalty-free, worldwide, exclusive, perpetual, irrevocable license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations, or other information related thereto provided by Company and/or its employees. The Services are provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable.
10. Term and Termination.
These terms are effective upon your acceptance, or upon your accessing, and using the Services. These terms shall continue in effect until terminated. You may terminate these terms or any license hereunder at any time by providing us thirty (30) days’ prior written notice of your decision to terminate. We may terminate if you breach any of these terms by giving you written notice of your breach and our decision to terminate; except that we may terminate sooner or even immediately in the event you fail to make any timely payment. Once access to the Services has been denied as a result of termination, we reserves the right to impose a reasonable re-connection fee.
11. Our Warranties and Disclaimers
a). We warrant that (i) the Services shall be free of viruses, Trojan horses, worms, spyware, or other malicious code or components and your sole and exclusive remedy for this warranty is we will repair or replace the infected Services; (ii) we will use commercially reasonable efforts to safeguard and accurately maintain Collected Information, consistent with industry security standards and backup procedures; and (c) we are the owner of the Software or we have the right to grant to you the licenses contained herein without violating any proprietary rights of any third parties.
b). EXCEPT AS PROVIDED IN THIS SECTION, WE DISCLAIM, TO THE EXTENT AUTHORIZED BY LAW, ANY AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (i) WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (ii) WARRANTIES ARISING THROUGH COURSE OF DEALINGS OR USAGE OF TRADE; AND (iii) WARRANTIES THAT THE SERVICES WILL BE ERROR FREE. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ANY WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ASSUME RESPONSIBILITY FOR SELECTING THE BEST SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICES. THIS DISCLAIMER APPLIES TO ANY EXPENSES, DAMAGES OR INJURY, REGARDLESS OF THE CAUSE, WHETHER FOR BREACH OF CONTRACT, STRICT LIABILITY, TORTUOUS BEHAVIOR, NEGLIGENCE, OR FOR ANY OTHER CAUSE OF ACTION.
12. Liability for our Services.
EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THE SERVICES OR THESE TERMS INCLUDING, WITHOUT LIMITATION, OUR INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID TO us BY YOU UNDER these terms for the particular product or service utilized or accessed during THE twelve MONTH period IMMEDIATELY PRECEEDING THE INCIDENT WHICH GAVE RISE TO THE LIABILITY. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS.
a). We will, at our expense, indemnify and hold you harmless against any claims made by an unaffiliated third party that the Services infringe its patent, copyright or trademark or misappropriates its trade secrets; provided (i) you notify us, in writing, not later than 20 days after you receive notice of the claim, (ii) you give us sole control of the defense and any settlement negotiations, and (iii) you cooperate with us in defending against or settling the claim. Our obligation of indemnification will not apply to the extent that the claim is based on your use of the Services after we notify you to discontinue use due to such a claim, your combining the Services with a product, data or business process including third party add-ons or programs that isn’t ours, damages attributable to the value of the use of a product, data or business process that isn’t ours, your altering or modifying the Services, including any modifications by third parties; or your use of the Services in violation of these terms. You will reimburse us for any costs or damages that result from these actions. If, as a result of an infringement or misappropriation claim, your use of the Services is enjoined by a court of competent jurisdiction, we will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the unused amounts paid and terminate the applicable license(s). This constitutes your exclusive remedy for third party infringement and trade secret misappropriation claims.
b). You hereby agree to indemnify, defend and hold harmless us from and against any and all claims, proceedings, damages, liability and costs (including reasonable attorney’s fees) incurred by us in connection with any claim arising out of (i) any breach or alleged breach of any of your obligations set forth herein, and (ii) your use of the Services, or the use by any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by these terms, regardless of the type or nature of the claim. You shall cooperate as fully as reasonably required in the defense of any claim. We reserve the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the prior written consent of us.
a). These terms shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without regard to the conflicts of law rules thereof. Any and all claims arising hereunder shall be brought exclusively in the state courts located in Chester County or the federal courts located in Philadelphia County. You and us agree that the Uniform Computer Information Transactions Act (UCITA) as adopted in any state in which this User Agreement may be performed, shall not apply to this User Agreement. You also agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. Subject to the foregoing, the failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any term or provision of these terms are declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.
b). In the event you fail to meet any of your obligations hereunder or timely pay any costs, fees, taxes, interest or other amounts required to be paid to us hereunder or in connection with your use of the Services, we may seek all available remedies to enforce our rights and you agree to reimburse us for all costs associated therewith including without limitation, attorneys’ fees and costs.
c). You may not assign, transfer or sublicense your rights to these terms. Sections 3, 5, 7, 8, 9, 12, 13, and 14 shall survive the termination of your use of the Services, regardless of the cause for termination, and shall remain valid and binding indefinitely.
d). You agree that Energage may provide notices and other communications to you solely by means of e-mail or other electronic transmission. Furthermore, we reserve the right, in its sole discretion, to amend these terms from time to time, which shall become effective upon the earlier of (a) your continued use of the Services after notification of the amendment or (b) thirty (30) days after it is posted at energage.com. If you do not accept amendments made to these terms, you shall immediately notify us and discontinue your use of the Services. Notwithstanding the foregoing, Your continued use of the Services following any amendment to these terms shall be conclusively deemed an acceptance of all such amendments.
e). Unless you provide us with written notice to the contrary, you give us the right to use your company name and logo in print, on-line, and in other multimedia advertising and marketing materials for the purpose of disclosing that you are our customer. These terms and your acceptance thereof constitute the entire agreement between Company and us with respect to the Services, and supersedes all prior agreements between you and us related there to.
– End of terms. –