PLEASE READ THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) CAREFULLY. BY ACCEPTING THIS AGREEMENT, THE USER ACKNOWLEDGES THAT HE, SHE OR IT, OR THE ENTITY FOR WHICH THE USER IS AN AUTHORIZED END USER (COLLECTIVELY, “YOU” OR “USER”), IS OBTAINING, ACCESSING AND/OR USING SOFTWARE, PRODUCTS, SERVICES AND OTHER DATA, REPORTS, COMPONENTS OR SERVICES (COLLECTIVELY, THE “LICENSED CONTENT”) OWNED AND PROVIDED BY SMARTER COLLABORATION INTERNATIONAL, INC. (“SCI”).   CLICKING “ ACCEPT”  TO AGREE WITH THE TERMS OF THIS AGREEMENT, AND/OR DOWNLOADING, INSTALLING, ACCESSING OR USING ANY OF THE LICENSED CONTENT CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT.

 

Please note that apart from this Agreement, SCI’s Website Terms and Conditions, located at www.smartercollaboration.com/terms-and-conditions, govern all parties’ access and use of SCI’s website at smartercollaboration.com, along with all related blogs and affiliated Web pages and social media sites (collectively, the “Site”), and that SCI’s Privacy Policy, located at www.smartercollaboration.com/privacy-policy, governs SCI’s collection, distribution, use and protection of third party information.

 

SCI IS WILLING TO LICENSE THE LICENSED CONTENT TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. TO THE EXTENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS END USER

 

SCI MAY AMEND, MODIFY OR OTHERWISE CHANGE THE TERMS OF THIS AGREEMENT FROM TIME TO TIME. THE MOST CURRENT VERSION OF THIS AGREEMENT WILL BE POSTED AT SMARTERCOLLABORATION.COM. FOR MATERIAL AMENDMENTS THAT AFFECT USER'S RIGHTS OR SCI'S DATA PRACTICES, SCI SHALL PROVIDE AT LEAST THIRTY (30) DAYS' PRIOR NOTICE BY POSTING A PROMINENT NOTICE ON ITS WEBSITE OR BY IN-APPLICATION NOTIFICATION TO USERS UPON NEXT LOGIN. FOR NON-MATERIAL AMENDMENTS, UPDATED TERMS WILL BE POSTED ON SCI'S WEBSITE WITHOUT PRIOR NOTICE. USER'S CONTINUED ACCESS OR USE OF THE LICENSED CONTENT FOLLOWING THE APPLICABLE NOTICE PERIOD SHALL CONSTITUTE USER'S ACCEPTANCE OF SUCH AMENDMENTS.

 

SCI MAY MODIFY, UPDATE, UPGRADE OR OTHERWISE CHANGE THE COMPONENTS, FUNCTIONALITY, FEATURES OR OTHER ASPECTS OF THE LICENSED CONTENT FROM TIME TO TIME AND AT ANY TIME, IN ITS SOLE DISCRETION AND WITHOUT NOTICE TO USER.  USER’S CONTINUED ACCESS OR USE OF THE LICENSED CONTENT SHALL CONSITITUE ITS ACCEPTANCE OF ANY SUCH CHANGES.

 

Scope. This Agreement applies to User's access to and use of whichever SCI products and services User has been authorized to access in connection with their specific engagement, as determined by the applicable enterprise agreement between SCI or its authorized reseller and User's organization, or as otherwise communicated to User by SCI or its authorized reseller prior to access. SCI's products currently include the SmarterNetworks™ platform, the Smarter Collaboration Profile, the SC360 assessment, and SC Signals (collectively with any other SCI products made available to User, the "Licensed Content"). Where User's organization has entered into a separate enterprise agreement with SCI or an authorized reseller of SCI governing the use of SCI products, the terms of that enterprise agreement shall prevail over the terms of this Agreement to the extent of any conflict.

 

1. License. Conditioned upon compliance with the terms and conditions of the Agreement, SCI grants to User a nonexclusive, nontransferable, nonsublicensable, revocable, limited license to access and use the Licensed Content, together with all enhancements, future versions, modifications and other improvements thereto, solely for User’s own internal business purposes. No other licenses are granted by implication, estoppel or otherwise, including licenses or rights to any intellectual property rights, methodologies, algorithms or know-how of SCI underlying any of the Licensed Content.

 

2. Restrictions. Except as otherwise expressly provided under this Agreement, User shall have no right, and User specifically agrees not to:

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1. modify, adapt, duplicate, republish, display, transmit or distribute all or any part of the Licensed Content or create derivative works based upon Licensed Content, or permit third parties to do the same, except as expressly permitted by the use of the Licensed Content; 

2. transfer, assign or sublicense its license rights to any other person or entity, and User acknowledges that any attempted transfer, assignment, sublicense or use shall be void;

3. use the Licensed Content, or any component thereof or information provided by or through the Licensed Content, for any unlawful or unauthorized purpose;

4. make error corrections to or otherwise modify or adapt the Licensed Content or create derivative works based upon the Licensed Content, or permit third parties to do the same;

5. reverse engineer or decompile, decrypt or disassemble the Licensed Content;

6. access, upload, store, analyze, distribute or transmit any materials that (A) violate or infringe in any way upon the rights of others, (B) are unlawful, threatening, abusive, hateful, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, inappropriate, indecent, lascivious, lewd, profane, obscene, racist, or excessively violent, (C) constitute or encourage conduct that would constitute a criminal offense or give rise to civil liability or otherwise violate any law, or (D) contain a virus, Trojan horse, worm, time bomb, cancelbot, easter egg, corruptive file, or other harmful or disruptive component;

7. impersonate any person or entity or misrepresent its affiliation with any other person or entity, or in any way create a false identity for the purpose of misleading others;

8. use on behalf of, or permit the Licensed Content to be used for, third parties, without the express written authorization of SCI;

9. upload, input or otherwise provide any Licensed Content or other reports, materials or intellectual property provided by or owned by SCI into any artificial intelligence (AI) platform, machine learning system, or similar technology, whether for analysis, content generation, or any other purpose;

10. disclose, provide, or otherwise make available trade secrets contained within the Licensed Content in any form to any third party without the prior written consent of SCI; or

11. attempt to gain unauthorized access to, or disrupt or interfere with the security of, or otherwise cause harm to, the internal systems or any website of SCI, including the Site, or any systems resources, accounts, servers or networks connected to or accessible through the systems or websites of SCI.

12. use any SCI assessment product, or any results, reports, or outputs generated thereby, as the primary or sole basis for making employment decisions, including without limitation decisions regarding hiring, termination, promotion, or compensation, without appropriate independent validation of the assessment tool for such purposes and without compliance with all applicable employment and anti-discrimination laws.

 

3. Suspension. SCI may in its sole discretion suspend User’s right to access or use the Licensed Content immediately upon notice to User if SCI determines in its sole discretion that the use of the Licensed Content by User (a) poses a security risk, (b) is connected with service attacks, spamming, misappropriation of third-party rights, illegal activity or may otherwise subject SCI or its affiliates to any liability or (c) constitutes a breach of this Agreement. SCI shall not be liable for actions initiated by SCI pursuant to this Section 3.

 

4. Intellectual Property.

 

1. This is a license, not a transfer of title, to the Licensed Content, and SCI shall retain all right, title and interest in and to the Licensed Content and any materials created by SCI, all trade names, trademarks, service marks, titles, brands, brand features and logos of SCI, its confidential information and all of its other intellectual property, and any and all enhancements, variations, improvements and modifications made thereto. The Licensed Content may be protected by trademark and copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Other than the license granted above, User will not acquire any rights in or to any data or reports furnished to User via its access and use of the Licensed Content.

2. User shall not, (i) appropriate the Licensed Content or SCI’s intellectual property rights thereto or any enhancements, variations, improvements and modifications made thereto, or challenge SCI’s ownership thereof or rights therein, or (ii) sell, transfer, lease, disseminate or otherwise make available the Licensed Content, without the prior written consent of SCI.

3. Assessment Results. To the extent User completes any SCI assessment product, User acknowledges that the results, reports, and outputs generated thereby ("Assessment Results") are derived from SCI's proprietary assessment methodologies and scoring frameworks. Assessment Results are provided to User solely for User's own professional development and informational purposes. Assessment Results do not constitute psychological diagnoses, clinical assessments, or professional advice of any kind. User shall not reproduce, distribute, or disclose Assessment Results to any third party without the prior written consent of User's organization and SCI, except to the extent expressly authorized under the applicable enterprise agreement.

4. User hereby acknowledges and agrees that, to the extent User provides SCI with any feedback, comments, suggestions or ideas regarding the Licensed Content or its access or use thereof (“Feedback”), SCI shall have all right, title and interest to such Feedback and shall be entitled to freely incorporate any such Feedback into any improvements, modifications, enhancements or subsequent versions of the Licensed Content or any new products or derivative works. 

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5. Data Protection and Privacy.

 

1. Data Collection. In connection with User's access to and use of the Licensed Content, SCI may collect and process certain personal data relating to User, including without limitation User's name, email address, organizational information, and responses to or results from any SCI assessment products ("User Data"). SCI processes User Data solely for the purpose of providing the Licensed Content and as further described in SCI's Privacy Policy, located at www.smartercollaboration.com/privacy-policy.

2. Assessment Data. Where User participates in any SCI assessment product, User acknowledges and consents to the collection and processing of User's assessment responses and results ("Assessment Data") for the purposes of generating User's assessment report and providing the assessment services to User's organization. Assessment Data will be shared with User's organization in accordance with the applicable enterprise agreement. SCI will not use Assessment Data to identify, profile, or make decisions about User beyond the scope of the applicable assessment engagement without User's separate consent.

3. Data Security. SCI maintains appropriate technical and organizational measures to protect User Data and Assessment Data against unauthorized access, use, alteration, or disclosure, as further described in SCI's Privacy Policy.

4. Data Rights. To the extent applicable Data Protection Laws grant User rights regarding User's personal data — including rights of access, correction, deletion, or portability — User may exercise such rights by contacting SCI at info@smartercollaboration.com. SCI will respond to such requests in accordance with applicable Data Protection Laws.

5. Retention. SCI will retain User Data and Assessment Data for the period specified in the applicable enterprise agreement, or in the absence of such specification, for a period of no longer than three (3) years following the conclusion of the applicable engagement, unless a longer retention period is required by applicable Law.

 

6. Confidentiality.  During the term of this Agreement and thereafter, User shall keep confidential and shall not publish or otherwise disclose and shall not use for any purpose other than as provided for in this Agreement any Confidential Information furnished to User by SCI, whether by virtue of the Licensed Content or otherwise, except for that portion of such information or materials that User can demonstrate by competent written proof: (i) was already known to User, other than under an obligation of confidentiality, at the time of disclosure by SCI; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to User; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of User; or (iv) was disclosed to User by a third party who has a legal right to make such disclosure. For the purposes of this Agreement, “Confidential Information” means all confidential, proprietary or trade secret or information of SCI, whether of a technical, business or other nature, whether in oral, written, graphic, or electronic form, whether labelled or identified as confidential, or otherwise of a nature that would reasonably be deemed to be confidential.

 

7. Termination. This Agreement and the license granted herein shall remain effective until terminated.  This Agreement may be terminated by SCI upon written notice to User, if after five (5) business days’ notice from SCI, a material breach of this Agreement by User remains uncured to SCI’s satisfaction.  User may terminate this Agreement upon written notice to SCI (although any applicable prepaid fees may not be refunded).  Upon termination of this Agreement, the license granted herein shall automatically terminate, and User shall immediately cease any access to or use of any Licensed Content, and User shall immediately delete all copies of Licensed Content within its possession or control.  User shall, if requested by SCI, certify or confirm in writing (email being sufficient) that it has complied with the foregoing requirements.  Termination of this Agreement shall not relieve User of its obligations regarding confidentiality, indemnification and non-appropriation of intellectual property hereunder. Termination is in addition to, and not in lieu of, any equitable remedies available to SCI. All obligations of User that by their terms extend beyond termination, all restrictions and limitations imposed on User and all limitations of liability and disclaimers and restrictions of warranty under this Agreement shall survive termination of this Agreement.​

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8. Disclaimer of Warranties.

 

1. THE LICENSED CONTENT, INCLUDING, WITHOUT LIMITATION, ALL DATA, CONTENT AND SOFTWARE INTEGRATED OR INCORPORATED THEREIN, IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND.

2. WITHOUT LIMITING THE FOREGOING, SCI EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND INFORMATIONAL CONTENT, AND ANY AND ALL WARRANTIES WITH RESPECT TO THE LICENSED CONTENT, OR ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE.

3. WITHOUT LIMITING THE FOREGOING, SCI MAKES NO REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED, (i) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, CONTENT, SERVICE OR MERCHANDISE PROVIDED BY OR THROUGH SCI OR THE LICENSED CONTENT, AND (ii) AS TO USER’S USE OR QUIET ENJOYMENT OF THE LICENSED CONTENT, AND SCI SHALL NOT BE LIABLE, EITHER DIRECTLY OR INDIRECTLY, OR AS AN INDEMNITOR OF USER, AS A CONSEQUENCE OF ANY IMPAIRMENT OF SUCH USE OR QUIET ENJOYMENT. THE COMPANY MAKES NO WARRANTY THAT THE LICENSED CONTENT WILL MEET USER’S EXPECTATIONS, REQUIREMENTS OR NEEDS.

4. UNDER NO CIRCUMSTANCES SHALL SCI BE LIABILE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE LICENSED CONTENT, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO SCI’S RECORDS, PROGRAMS, PRODUCTS OR SERVICES.

 

8. Indemnification.  User shall indemnify, defend and hold harmless SCI and its affiliates, the assignees of each, and their respective directors, officers, agents and employees, from and against all third party claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including reasonable attorney's fees) arising directly from: (i) User's willful misconduct, fraud, or deliberate misuse of the Licensed Content in material violation of this Agreement; (ii) User's infringement of any third party's intellectual property rights through User's use of the Licensed Content; or (iii) User's violation of applicable Law in connection with User's use of the Licensed Content. SCI reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User will cooperate in asserting any available defenses.

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9. Limitation on Liability. EXCEPT FOR LIABILITY ARISING UNDER A PARTY’S WILLFUL MISCONDUCT, FRAUD OR BREACH OF SECTIONS 4 AND 5, IN NO EVENT SHALL A SCI BE LIABLE TO USER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING FROM OR RELATING TO THIS AGREEMENT, FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM (A) LOSS OF PROFITS, BUSINESS OR GOODWILL, OR (B) THE PERFORMANCE OF THE PRODUCTS, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE TOTAL LIABILITY OF SCI HEREUNDER EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY AND/OR DUE FROM USER (OR THE ENTITY FOR WHICH USER IS AN AUTHORIZED END USER) PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF THE APPLICABLE CLAIM.

 

10. Injunctive Relief. User acknowledges and agrees that any breach by it of any of the covenants or agreements set forth in Sections 1, 2, 4 and 5 of this Agreement is likely to, and can be expected to, result in irreparable harm and injury, directly and indirectly, to SCI, and User therefore consents and agrees that, if it shall violate any of such covenants or agreements, SCI shall be entitled, among and in addition to any other rights or remedies available at law or otherwise, to temporary and permanent injunctive relief (without the necessity of proving damages or posting bond or other security) to prevent User or any employee, consultant or third party acting as an agent or representative of User from committing or continuing such violation or breach and to enforce specifically the provisions thereof in any judicial action or proceeding instituted in accordance with this Agreement.  User will not claim as a defense to such petition for injunctive relief that there is an adequate remedy at law.

 

11. Assignment.  Neither party may assign or transfer this Agreement or any rights or obligations hereunder, in whole or in part, without the prior written consent of the other, which consent shall not be unreasonably withheld, delayed or conditioned; provided that SCI may assign its rights and obligations under this Agreement to any affiliate or to any successor to all or substantially all of its assets and business by dissolution, merger, consolidation, transfer of assets or otherwise.  Any assignment or attempted assignment by either party in violation of the terms of this section shall be null, void and of no legal effect.

 

12. Force Majeure.  SCI shall not be liable to User for any delay or failure to provide any of the Licensed Content or perform any other obligations due to causes beyond its reasonable control, including, without limitation, acts of God, fire, storm, flood, drought, epidemic, pandemic, failure or default of public utilities or common carriers, accidents, earthquakes, acts of the public enemy, war, civil commotion, terrorism, rebellion, insurrection, riot, invasion, labor disturbances, strike or lockout. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay. Without limiting the foregoing, SCI’s time of performance shall be lengthened, if and to the extent reasonably necessary, in the event that User fails to provide information or materials as requested by SCI on a timely basis.

 

13. Independent Contractors.  Each party shall act solely as an independent contractor, and nothing in this Agreement shall be construed to give either party the power or authority to act for, bind, or commit the other party in any way.  Nothing herein shall be construed to create the relationship of partners, principal and agent, or joint-venture partners between the parties.

 

14. Severability.  If any one or more of the provisions of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction from which no appeal can be or is taken, the provision shall be considered severed from this Agreement and shall not serve to invalidate any remaining provisions hereof. 

 

15. Governing Law; Dispute Resolution. 

 

1. This Agreement and any dispute of any sort that might arise between User and SCI or its affiliates or subsidiaries will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles.

2. Any action brought to enforce this Agreement shall be governed exclusively and finally by arbitration, provided, however, that notwithstanding anything contained in this Agreement to the contrary, SCI shall have the right to institute judicial proceedings against User or anyone acting by, through or under User, in order to enforce SCI’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.  Such arbitration shall be conducted by the American Arbitration Association (“AAA”) in Boston, Massachusetts, and shall be initiated and conducted in accordance with the Commercial Arbitration Rules of the AAA, as such rules shall be in effect on the date of a delivery of a demand for arbitration.   Such arbitration shall be conducted by a single independent arbitrator (the "Arbitrator") to be designated by the AAA in accordance with its Commercial Arbitration Rules.  In any event, the Arbitrator shall be independent and without any economic or financial interest of any kind in the outcome of the arbitration.  Any award by the Arbitrator shall be final, binding and non-appealable, and judgment upon such award may be entered by any court of competent jurisdiction.   Each party shall pay the fees of its own attorneys, expenses of witnesses and all other expenses and costs in connection with the arbitration proceedings.  User consents to such arbitration as the method of dispute resolution and irrevocably waives any objection which User may now or hereafter have to the bringing of any such matters before any court.   Any demand for arbitration User may have with respect to this Agreement must be commenced within two (2) years after the facts underlying the matter arise, except that claims arising from a breach of SCI's data protection or privacy obligations shall be commenced within the period permitted by applicable Data Protection Laws.

3. rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.  Such arbitration shall be conducted by the American Arbitration Association (“AAA”) in Boston, Massachusetts, and shall be initiated and conducted in accordance with the Commercial Arbitration Rules of the AAA, as such rules shall be in effect on the date of a delivery of a demand for arbitration.  The arbitration shall be conducted by a single independent arbitrator (the “Arbitrator”) to be selected by SCI, or otherwise as designated by the AAA.  In any event, the Arbitrator shall be independent and without any economic or financial interest of any kind in the outcome of the arbitration.  Any award by the Arbitrator shall be final, binding and non-appealable, and judgment upon such award may be entered by any court of competent jurisdiction.   Each party shall pay the fees of its own attorneys, expenses of witnesses and all other expenses and costs in connection with the arbitration proceedings.  User consents to such arbitration as the method of dispute resolution and irrevocably waives any objection which User may now or hereafter have to the bringing of any such matters before any court.  Any demand for arbitration User may have with respect to this Agreement must be commenced within one (1) year after the facts underlying the matter arise.