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Outdoor Purist
Lifestyle Curator
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(GMT+13:00) Samoa
(GMT+13:00) Tokelau Is.
Terms of Service
1. Definitions. a. “Agreement” means these Terms and any other written or electronic agreement (i.e., a Purchase Agreement) between Revelation and Licensee that incorporates these Terms by reference. b. “AUP” means the acceptable use policy made available by Revelation within its website. c. “Authorized User” means Licensee-designated individuals who are authorized by Licensee to use the Software for Project creation, Data collection and research purposes. d. “Client Observer” means a representative from the Licensee’s client (“Client”) to whom Licensee provides access to the Project but who shall have read-only rights and shall not be able to create Projects, input or manipulate Data, or otherwise interact with the Software. e. “Data” means feedback and responses to Project queries from the Participants, including but not limited to photos, videos, analysis, analytics or other artifacts created by Participants. f. “Data Collection Period” means that period of time, as defined in the Purchase Agreement, during which Licensee may collect Data from Participants. g. “Licensee” means any party that enters this Agreement for purposes of obtaining Revelation products and/or services. h. “Participant” means those persons from whom the Licensee solicits Data for entry into the Project. i. “Project” means a discrete online research project created using the Software. j. “Purchase Agreement” means the then-current Purchase Agreement between Revelation and the Licensee that specifically describes the scope of any applicable Project or related engagement. k. “Revelation” means Revelation, Inc. l. “Server” means a Revelation or third party server utilized to make the Software available to Licensee. m. “Software” means Revelation® ASP-model market research technology. 2. Right to Use the Software. Revelation grants to Licensee a nonexclusive, revocable, nontransferable right to access the Software on the Server subject to the terms and conditions of this Agreement and the Purchase Agreement. The number of Authorized Users and Client Observers (collectively, “End User”) who shall be granted access and use, and the number of Participants who shall be granted access to submit Data, shall be as specified in the Purchase Agreement 3. Restrictions on License. Licensee shall not sell, rent, lease, sublicense, lend, assign or transfer the Software in whole or in part, nor may Licensee utilize the Software to provide services to any third parties who are not Clients; provided, however, that Licensee may authorize Client Observers to utilize the Software in order to view the Data. Licensee may not copy, modify, create a derivative work of, reverse engineer, reverse compile, reverse assemble, download, transmit or otherwise transfer the Software in any format or through any means of communication or attempt to extract the source code of the Software or any part thereof. Revelation hereby reserves all rights in and to the Software not explicitly granted in this Agreement. Revelation shall be entitled to terminate this Agreement and Licensee’s access and use of the Software immediately and without notice if, in Revelation’s sole determination, Revelation believes Licensee has breached this Section 3. 4. License to Documentation. Revelation grants to Licensee the right to make a reasonable number of copies (either in hardcopy or electronic form) of any documentation provided with the Software; provided that such copies shall be used exclusively for Licensee’s internal business purposes and shall include Revelation’s copyright notice, trademarks and other proprietary markings; provided, further, that Licensee shall not republish or distribute the documentation to any third parties. 5. Access to the Software. Licensee shall access the Server and the Software through a Revelation internet site (the “Site”) by way of a unique URL and confidential password established for each End User named by Licensee. Each End User shall be bound by and subject to the terms and conditions of this Agreement. Licensee shall be obligated to enforce such terms and conditions against each End User and shall be liable for any breach by an End User. 6. Participant Access and Rights. Participants’ access to and use of the Software are limited to submitting Data during the Data Collection Period. Revelation has no obligations to Participants and grants no rights to Participants under this Agreement. Licensee shall be solely responsible for establishing the terms and conditions under which Participants are permitted to access and use the Software; provided that, at a minimum, Licensee must ensure that each Participant is bound by terms and conditions that are at least as protective of Revelation as those set forth in this Agreement, including, without limitation, the provisions in Sections 12, 13 and 20 of this Agreement. In addition, Licensee shall (i) establish and make available to Participants in advance a privacy policy that complies with applicable data protection law and governs any use of personally identifiable information to be collected from such Participants, (ii) make any such policy available to Revelation upon request and (iii) strictly comply with such policy at all times. 7. No Transfer of Rights; Ownership of Deliverables. Licensee shall not acquire any intellectual property rights in the Software by virtue of this Agreement, including, but not limited to, patent, copyright, trademark or trade secret. Revelation and Licensee each acknowledge and agree that there are no implied rights granted to Licensee under this Agreement. The parties acknowledge and agree that the Software (including all copies thereof) is owned by Revelation and is protected by United States copyright and patent laws and international treaty provisions, and that Licensee will not challenge or question at any time Revelation’s ownership of and rights in and to the Software. Unless otherwise agreed upon by the parties in the Purchase Agreement, Revelation shall retain all right, title and interest in and to any other deliverables provided to Licensee under this Agreement. 8. Licensee Equipment. Licensee shall be responsible for obtaining and maintaining its equipment necessary for accessing the Software through the internet. 9. Server Availability. Revelation provides access to the Software on an as-is basis. Revelation shall make commercially reasonable efforts to maintain Servers and maximize uptime; provided, however, Revelation makes no representations or warranties regarding Server uptime, nor shall Revelation be responsible for acts outside its control that cause downtime, including, but not limited to, acts of God, strikes, power shortages and rolling blackouts, wars, natural disasters and the inability to obtain labor or materials on a timely basis. In the event the Server is unavailable or inoperative, Revelation shall make commercially reasonable efforts to provide a back-up or alternate server. Revelation shall maintain the Server, Software and associated documents and user information in a secure environment and exercise a standard of care customary in the industry. 10. Support. Revelation shall use commercially reasonable efforts to provide the following support services (“Support”): a. Set-Up. Revelation will set up an administrator account by which Licensee’s authorized administrator (“Administrator”) will be able to create user accounts for and grant appropriate access to Authorized Users, Participants and Client Observers. b. Ongoing Services. Revelation shall provide technical support, hosting, performance monitoring, load balancing and redundancy, and unlimited email support with a maximum initial response time of 48 hours. Support shall be provided to Licensee in accordance with the Support Terms in the Purchase Agreement. c. Support Hours. Revelation shall make Support available Monday through Friday, from 6:00 a.m. to 6:00 p.m. and Saturday and Sunday from 9:00 a.m. to 6:00 p.m. (USA Pacific Time), except when such days fall on Revelation-observed holidays, which currently include (and may be amended at Revelation’s discretion with 7 day’s advance notice to Licensee): New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, Friday following Thanksgiving, and Christmas Day. Requests received for Support outside Support Hours shall be processed on the next occurring business day. 11. Disclaimer of Warranties. LICENSEE EXPRESSLY ACKNOWLEDGES THAT THE SOFTWARE, THE SITE, THE SERVER AND ANY OTHER ITEMS USED OR PROVIDED BY REVELATION IN CONNECTION WITH THE SOFTWARE OR PERFORMANCE OF ANY SERVICES HEREUNDER ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” AND THE ENTIRE RISK WITH RESPECT TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH LICENSEE. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, REVELATION DISCLAIMS ANY AND ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING BY COURSE OF CONDUCT OR PERFORMANCE, CUSTOM OR USAGE IN THE TRADE, INCLUDING, BUT NOT LIMITED TO, (1) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT; (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE; AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE SITE, SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. REVELATION IS NOT RESPONSIBLE FOR THE CONTENT OF ANY PROJECT CREATED ON OR THROUGH THE SOFTWARE, NOR IS IT RESPONSIBLE FOR THE RESPONSES OR DATA SUBMITTED TO ANY SURVEY REQUESTS BY PARTICIPANTS OR FOR THE DATA OR RESULTS GENERATED BY SURVEY RESPONSES. REVELATION DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RESPONSES, INFORMATION OR DATA SUPPLIED BY PARTICIPANTS. REVELATION DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE CONSEQUENCES OF THE USE OF DATA. REVELATION SPECIFICALLY DISCLAIMS RESPONSIBILITY FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION OR OTHER LOSS RESULTING FROM LICENSEE’S USE OF OR RELIANCE ON DATA. LICENSEE ACKNOWLEDGES AND AGREES THAT IT IS LICENSEE’S SOLE RESPONSIBILITY TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY RESPONSES, RESULTS, DATA OR OTHER INFORMATION RECEIVED WHILE USING THE SOFTWARE. REVELATION SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT ACCESS TO OR USE OF THE SOFTWARE; (2) ANY INCOMPATIBILITY BETWEEN THE SOFTWARE AND OTHER WEBSITES, SERVICES, SOFTWARE AND HARDWARE; (3) ANY DELAYS OR FAILURES LICENSEE MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE SOFTWARE AND SERVICES IN AN ACCURATE OR TIMELY MANNER; OR (4) ANY DAMAGES OR CONSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH LICENSEE’S USE OF ANY SOFTWARE AND SERVICES AVAILABLE FROM THIRD PARTIES THROUGH LINKS. 12. Responsibility for and Ownership of Data. Revelation shall make commercially reasonable efforts to ensure the Software and associated data incorporated in to the Software are current and accurate; provided, however, Licensee bears full responsibility for all data inputted by Licensee and Participants (“Licensee Data”) and shall be solely responsible for determining the applicability of the output generated by the Software and confirming its accuracy. Revelation specifically disclaims any ownership of Licensee Data, and ownership of Licensee Data shall be governed according to the agreement between Licensee and Licensee’s Client. Notwithstanding the foregoing, Licensee and its Participants will not upload as part of the Licensee Data any of the following types of information (“Prohibited Data”): (a) information protected under the privacy or security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and (b) personally identifiable information such as (i) drivers license numbers, (ii) passport numbers, (iii) social security, tax ID or similar numbers, or (v) bank, checking, credit card, debit card, or other financial account numbers. 13. Data Collection; Security. Revelation will take reasonable commercial precautions to secure any data (including Data) that is uploaded to the Site and/or Server. Although Revelation facilitates Licensee’s collection of Data, which may or may not include personally identifiable data, Revelation does not itself collect personally identifiable information nor monitor any of the Licensee Data. Licensee is solely responsible for compliance with any federal, state, local and international laws regarding the collection, processing and protection of the Licensee Data. While Revelation shall ensure that the Server and Software are maintained with adherence to the safe harbor framework developed by the U.S. Department of Commerce in coordination with the European Commission, Revelation specifically disclaims, and Licensee shall be responsible for, compliance with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (“Directive 95/46/EC”) and with Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 (“Directive 2002/58/EC” collectively, the “Directives”), including any and all amendments, modifications, changes and superseding laws and regulations to said Directives. Licensee shall solely be responsible for determining the applicability of and compliance with such Directives. 14. Indemnification by Licensee. Licensee agrees to indemnify and hold harmless Revelation from any third-party claims (i) based on Licensee’s, End Users’ or Participants’ use of the Software; (ii) resulting from the Data or Licensee Data (including any Prohibited Data included despite the prohibition set forth in Section 12 above); or (ii) alleging any violation of the terms and conditions of this Agreement or the intellectual property or proprietary rights of a third party. 15. Audit Rights. During the term of this Agreement and for a period of three years after termination or expiration, Licensee agrees to maintain complete records regarding its use of the Software and payment of all applicable fees. Upon reasonable notice, Revelation may audit Licensee’s books and records to determine Licensee’s compliance with the terms of this Agreement. All costs and expenses of any audit shall be paid by Revelation; provided, however, if such audit reveals that Licensee has underpaid any fee by five percent or more, Licensee shall pay all costs of expense of such audit and shall pay any and all outstanding fees along with interest at 1.5% per month on the unpaid balance. 16. Limitation of Liability. REVELATION’S LIABILITY FOR ANY DAMAGES RECOVERABLE BY LICENSEE BASED ON ANY THEORY OF LIABILITY IS LIMITED TO THE AMOUNTS PAID BY LICENSEE TO REVELATION UNDER THIS AGREEMENT DURING THE LAST SIX (6) MONTHS OF THE TERM OF THIS AGREEMENT. REVELATION’S SUPPLIERS WILL NOT BE LIABLE FOR DIRECT DAMAGES HEREUNDER, AND NEITHER REVELATION NOR ANY OF ITS SUPPLIERS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, USE OR PROFIT, EVEN IF REVELATION AND/OR ITS SUPPLIERS ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL REVELATION BE LIABLE FOR ANY PUNITIVE DAMAGES. 17. Changes to the Service and/or Software. Revelation reserves the right to alter the Software or delete features at any time and without reason or notice. 18. Confidential Information. a. Disclosure. Both parties may, in connection with this Agreement, disclose to the other party information considered confidential and proprietary information of the disclosing party (“Confidential Information”). Confidential Information includes Data. Information shall be considered Confidential Information if identified as confidential in nature by the disclosing party at the time of disclosure or which by its nature is normally or reasonably considered confidential, such as information related to past, present or future research, development or business affairs, any proprietary products, materials or methodologies, or any other information that provides that disclosing party with a competitive advantage. Confidential Information, if disclosed and provided in tangible form, shall be clearly and conspicuously identified as company confidential or proprietary. Confidential Information, if disclosed orally or visually, shall be identified as company confidential or proprietary in nature at the time of disclosure. Notwithstanding the foregoing, any information that the receiving party has reason to know is confidential or proprietary of the disclosing party shall be deemed Confidential Information of the disclosing party. The receiving party shall protect the disclosing party’s Confidential Information with the same degree of care that it regularly uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than a reasonable degree of care. Confidential Information shall not be provided or disclosed to anyone except those employees of the receiving party with a need to know under this Agreement. No rights or licenses under patents, trademarks or copyrights are granted or implied by any disclosure of Confidential Information. Confidential Information and any and all authorized copies thereof shall remain the property of the disclosing party and shall be destroyed or returned if requested by the disclosing party. The receiving party shall not export Confidential Information without the appropriate United States or foreign government export license. This Section 18 shall survive the expiration or termination of this Agreement. b. Exceptions to Confidentiality. The obligations of confidentiality imposed by this Section 18 shall not apply to any Confidential Information that: (i) is rightfully received from a third party without accompanying markings or disclosure restrictions; (ii) is independently developed by employees of the receiving party who have not had access to such Confidential Information; (iii) is or becomes publicly available through no wrongful act of the receiving party; (iv) is already known by the receiving party as evidenced by documentation bearing a date prior to the date of disclosure; or (v) is approved for release in writing by an authorized representative of the disclosing party. 19. Prohibition Against SPAM. Licensee is prohibited from using the Software to send SPAM or cause SPAM to be delivered. E-mail sent or caused to be sent, to or through the Software may not: (i) use or contain invalid or forged headers; (ii) use or contain invalid or nonexistent domain names; (iii) employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path; (iv) use other means of deceptive advertising; (v) use a third-party’s domain name or be relayed from or through a third-party’s equipment, without such third-party’s express permission; or (vi) contain false or misleading information in the subject line or otherwise contain false or misleading content. Revelation shall be entitled to terminate this Agreement and Licensee’s access and use of the Software immediately and without notice if, in Revelation’s sole determination, Revelation believes Licensee has breached this 19. Unauthorized use of the Software in connection with the transmission of unsolicited e-mail, including transmission of e-mail in violation of this Section 19, may result in civil, criminal or administrative penalties against the sender and those assisting the sender. 20. Acceptable Use/End User Conduct. Neither Licensee nor its Participants shall use the Software in any way that violates applicable federal, state, local or international law or for any unlawful purpose. Neither Licensee nor its Participants may use the Software to send, receive or download messages or materials that are inappropriate or violate the intellectual property rights of Revelation or others. Licensee agrees to remove and/or destroy any inappropriate, illegal or infringing Data immediately upon discovery of such Data. Licensee and its Participants shall violate any terms within the AUP or otherwise: a. Attempt to harm, disrupt or otherwise engage in activity that diminishes the Software, Revelation site, computer systems and/or network; b. Attempt to interfere with any other person’s use of the Software; c. Misrepresent Licensee’s identity or impersonate any other person; d. Attempt to gain access to any account, computers or networks related to the Software without authorization; e. Attempt to obtain any non-Licensee-owned data through any means from the Software without permission; f. Attempt to charge others to use the Software either directly or indirectly, except as specifically authorized under this Agreement; g. Use the Software to participate in pyramid schemes or chain letters; h. Use the Software for defaming, abusing, harassing, stalking, threatening or otherwise violating the legal rights of others; i. Use the Software to send or otherwise make available, any material protected by intellectual property laws unless Licensee owns or controls the rights to such material or have received all necessary consents; j. Use the Software to send or otherwise make available any material that contains viruses, Trojan horses, worms, corrupted files or any other similar software that may damage the operation of another’s computer or property; k. Use the Software to download any material sent by another user of the Software that Licensee knows, or reasonably should know, cannot be legally distributed in such a manner; l. Use the Software to violate any code of conduct or other guidelines which may be applicable to the Software; Revelation shall be entitled to terminate this Agreement and Licensee’s access and use of the Software immediately and without notice if, in Revelation’s sole determination, Revelation believes Licensee has breached this Section 20. 21. Injunctive Relief. Licensee acknowledges that Revelation shall suffer irreparable harm in the event that Licensee breaches any of its obligations under this Agreement and that monetary damages shall be inadequate to compensate Revelation for such breach. Accordingly, Licensee agrees that, in the event of a breach or threatened breach by Licensee of any of the provisions of this Agreement, Revelation, in addition to and not in limitation of any other rights, remedies or damages available to Revelation at law or in equity, shall be entitled to a temporary restraining order, preliminary injunction and permanent injunction in order to prevent or restrain any such breach by Licensee. 22. Third-Party Beneficiaries. The parties acknowledge that the Software may contain software and/or materials licensed by Revelation from third parties (“Revelation Licensors”). In the event the Software does contain software and/or materials licensed by Revelation from Revelation Licensors, Revelation Licensors may be direct and intended third-party beneficiaries of this Agreement and may be entitled to enforce it directly against Licensee. 23. General Provisions. a. Nonwaiver. The failure of either party to insist upon or enforce strict conformance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment of such party’s right unless made in writing and shall not constitute any subsequent waiver or relinquishment. b. Invalid Provision. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. c. Cumulative Remedies. The rights and remedies afforded to either party pursuant to any provision of this Agreement are in addition to and do not in any way limit any other rights or remedies afforded to either party by any other provision of this Agreement or by law. All such rights and remedies are cumulative and may be exercised singularly or concurrently. d. Assignment. Neither party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, Revelation may assign this Agreement to an affiliate, a successor in connection with a merger, acquisition or other consolidation, or to the purchaser in connection with the sale of all or substantially all of Revelation’s assets. e. Amendment. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties. f. Survival. The following sections shall survive termination of this Agreement: Section 3: Restrictions on License; Section 6: No Transfer of Rights; Section 10: Disclaimer of Warranties; Section 11: Responsibility for and Ownership of Data; Section 12: Data Collection; Security; Section 13: Indemnification by Licensee; Section 15: Limitation of Liability; Section 18: Confidential Information; Section 21: Injunctive Relief; and Section 22: Third-Party Beneficiaries. g. Compliance with Applicable Laws; Export Regulations. Licensee agrees to comply with all applicable laws, including export, re-export and foreign policy controls and restrictions. Licensee shall take all necessary actions and precautions to ensure that it does not contravene such laws or regulations. h. Entire Agreement. This Agreement and any Exhibits set forth the entire agreement between the parties and supersede any and all prior or contemporaneous agreements of the parties with respect to the subject matter contained herein. The parties shall not be bound by, and specifically object to, any term, condition or other provision inconsistent with or in addition to any provision of this Agreement or any Exhibit submitted in any purchase order, correspondence or any other document, unless specifically agreed to in writing by both parties. i. Attorneys’ Fees. If any legal action or any arbitration or other proceeding is brought for the enforcement or interpretation of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which such party may be entitled. j. Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the state of Oregon without regard to choice of law principles, and in no event will this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. In any legal action relating to this Agreement, Licensee agrees (i) to the exercise of jurisdiction over it by a state or federal court in Multnomah County, Oregon; and (ii) if Licensee brings the action, it will be instituted in one of the courts in Multnomah County, Oregon. Revelation may institute legal action in any appropriate jurisdiction. k. Force Majeure. Neither party shall be responsible for delays in any of its performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God, strikes, power shortages and rolling blackouts, wars, natural disasters, and the inability to obtain labor or materials on a timely basis. l. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by telegram or fax, or 48 hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the first page of this Agreement, or as subsequently modified by written notice. m. Counterparts and Facsimile Signatures. This Agreement may be executed in separate counterparts, none of which need contain the signatures of all parties, each of which shall be deemed to be an original, and all of which taken together constitute one and the same instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than the number of counterparts containing the respective signatures of, or on behalf of, all of the parties hereto. Each party to this Agreement agrees that it will be bound by its own facsimile signature and that it accepts the facsimile signature of each of the parties to this Agreement. n. Term and Termination. This Agreement shall continue in effect until the completion of the applicable Project and related engagement. This Agreement may be terminated by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party.
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