1. GENERAL

This agreement defines the Terms and Conditions of Use (“Terms and Conditions’) for Runzheimer’s Benchmarking Service (“RBS,” also “the Service”).  By using the Runzheimer Benchmarking Service, you agree to completely accept and abide by these Terms and Conditions, including the restrictions on the use of the Services set forth in Section 5 below.

1. Runzheimer may change, add or remove portions of these Terms and Conditions at any time, but if it does so, it will post such changes on the Service at www.runzheimer.com.
2. YOUR CONTINUED USE OF THE SERVICE NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY CHANGES IN THESE OPERATING RULES, WILL INDICATE ACCEPTANCE BY YOU OF SUCH RULES, CHANGES, OR MODIFICATIONS.
3. Runzheimer may change, suspend or discontinue any aspect of the Service at any time, including the availability of any Service feature, database, or content.  Runzheimer may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.
4. You acknowledge that these Terms and Conditions constitute a binding agreement between you and Runzheimer International Ltd.

 

2. YOUR REGISTRATION OBLIGATIONS

In consideration of your use of the Runzheimer’s Benchmarking Service (“the Service”), you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form and survey responses (such information being the "Registration Data" and survey responses) and (b) maintain and promptly update this data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, misleading, not current, or incomplete, or Runzheimer has reasonable grounds to suspect that such information is untrue, inaccurate, misleading, not current, or incomplete, Runzheimer has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).

 

3. PRIVACY POLICY

These Terms and Conditions include the terms and conditions of the Runzheimer Privacy Policy, a copy of which is located at http://www.runzheimer.com and which are hereby incorporated by reference. In the event that there is any inconsistency between these Terms and Conditions and Runzheimer’s Privacy Policy, these Terms and Conditions shall take precedence.

 

4. USER ID AND PASSWORD

You will receive a user ID and password upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account, and for all activities that occur under your password or account. You agree to (a) immediately notify Runzheimer of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Runzheimer cannot and will not be liable for any loss or damage arising from unauthorized use of your user ID and/or password, and you agree to indemnify and hold Runzheimer harmless from any such loss or damage.  Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your account, at Runzheimer's sole discretion, and Runzheimer may refer you to appropriate law enforcement agencies and/or seek damages.

5. RESTRICTIONS ON USE

 

1. If you or your organization are an outsourcing firm, a third-party relocation firm, or any other organization that, directly or indirectly, serves external clients with respect to survey-related information, you may not, under any circumstance, provide, sell, distribute, copy or transmit any aspect of this Service to any of your clients without the prior written permission from Runzheimer.  If you are such an organization and such permission is granted, you and your organization agree to pay Runzheimer an agreed upon fee for the Service for each client to which your organization provides access to, or copies of, any aspect of the Service, whether on an ongoing or a one-time basis.  Your use of the Service is otherwise restricted by these Terms and Conditions, including but not limited to, Section 11.b., below.

 

2. While these Terms and Conditions are in effect, you agree that you or your organization will not market, sell, distribute, offer or provide to any other organization or individual any products or service that directly competes with the Service or any other Runzheimer Product or Service.  These products and services are further described on Runzheimer’s Web site at www.runzheimer.com.

 

6. MEMBER CONDUCT

You and your organization, not Runzheimer, are entirely responsible for all Member-Provided Material (including but not limited to inputs to your responses to Runzheimer-sponsored surveys) that you post, email, transmit or otherwise make available via the Service (the “Member-Provided Material”). Runzheimer does not guarantee the accuracy, integrity or quality of such Member-Provided Material.  Under no circumstances will Runzheimer be liable in any way for any Member-Provided Material, including, but not limited to, for any errors or omissions in any Member-Provided Material, or for any loss or damage of any kind incurred as a result of the use of any Member-Provided Material posted, emailed, transmitted or otherwise made available via the Service.

You agree to not use the Service to:

1. upload, post, email, transmit or otherwise make available any Member-Provided Material that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
2. harm minors in any way;
3. impersonate any person or entity, including, but not limited to, a Runzheimer official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
4. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Member-Provided Material transmitted through the Service;
5. upload, post, email, transmit or otherwise make available any Member-Provided Material that you do not have a right to make available under any law or under any contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
6. upload, post, email, transmit or otherwise make available any Member-Provided Material that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
7. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
8. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
9. disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
10. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
11. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
12. "stalk" or otherwise harass another; or
13. collect or store personal data about other users.

You acknowledge that Runzheimer may not pre-screen Member-Provided Material, but that Runzheimer and its designees shall have the right (but not the obligation) in their sole discretion to refuse, revise or move any such Member-Provided Material that is available via the Service. Without limiting the foregoing, Runzheimer and its designees shall have the right in their sole discretion to remove any Member-Provided Material that violates these Terms and Conditions or is otherwise objectionable as determined by the sole discretion of Runzheimer.

You agree that you must evaluate, and bear all risks associated with, the use of any Member-Provided Material, including any reliance on the accuracy, completeness, or usefulness of such Member-Provided Material. In this regard, you acknowledge that you may not rely on any Member-Provided Material created by Runzheimer or submitted to Runzheimer, including without limitation information in all parts of the Service.

You acknowledge, consent and agree that Runzheimer may access, preserve, and disclose your account information and Member-Provided Material if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:  (a) comply with legal process; (b) enforce these Terms and Conditions; (c) respond to claims that any Runzheimer Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Runzheimer, its users and the public.

You understand that the technical processing and transmission of the Service, including your Member-Provided Material, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by Runzheimer and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.

You agree to comply with all local rules regarding online conduct and acceptable Member-Provided Material.  Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

 

7. CONTENT COPYRIGHT

1. All materials published by Runzheimer and its designees on the Service (including, but not limited to data, text, news articles, photographs, images, illustrations, audio clips and video clips, also known as the "Runzheimer Content") are protected by copyright, and owned or controlled by Runzheimer or the party credited as the provider of the Runzheimer Content. You shall abide by all additional copyright notices, information, or restrictions contained in any Runzheimer Content accessed through the Service.
2. The Service and its Runzheimer Contents are protected by copyright pursuant to U.S. and international copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except to create a single photo copy of any page displayed in the service for your own archives), create new works from, distribute, perform, display, or in any way exploit, any of the Runzheimer Content or the Service in whole or in part.
3. Copying or storing of any Runzheimer Content for other than individual use is expressly prohibited without prior written permission from Runzheimer.
4. Runzheimer does not claim ownership of Member-Provided Material that you submit or make available for inclusion on the Service. However, with respect to Member-Provided Material that you submit or make available for inclusion on uniquely accessible areas of the Service (e.g., your responses to Runzheimer-sponsored surveys), you grant Runzheimer a world-wide, royalty-free and non-exclusive license(s) to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Member-Provided Material on the Service solely for the purposes of providing and promoting the Service.

 

8. LINKS

Runzheimer’s Benchmarking Service may contain links to other related World Wide Web Internet sites, resources, and partners of Runzheimer’s Benchmarking Service.  Runzheimer shall not be responsible for, and shall have no liability to you regarding, the availability of these outside resources, or their contents, and you should direct any concerns regarding any external link to the site administrator or Webmaster of such site.

 

9. MODIFICATIONS TO SERVICE

Runzheimer reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Runzheimer shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service other than to the extent of repayment of any fees already paid to Runzheimer for the balance of an agreed-upon term of service.

 

10. SOFTWARE LICENSES

In the event that any Runzheimer-developed or third-party software is necessary in connection with the Services, you agree to enter into any license agreement for the software required by Runzheimer or such third party.

 

11. FEES AND PAYMENTS

1. Runzheimer reserves the right at any time to charge fees for access to portions of the Service or the Service as a whole. However, in no event will you be charged for access to the Service unless Runzheimer obtains your prior agreement to pay such charges. Thus, if at any time Runzheimer requires a fee for portions of the Service that are now free, Runzheimer will give you advance notice of such fees. All new fees, if any, will be communicated to you via email, via a posting on the Service, or through other means by Runzheimer.  If you do not agree to pay the new fees, your access to that portion of the Service requiring the new fees will be discontinued.  You shall pay all fees and charges incurred through your account at the rates in effect for the billing period in which such fees and charges are incurred, including, but not limited to charges for any products or services offered for sale through the Service by Runzheimer or by any other vendor or service provider.
2. All fees and charges shall be billed to and paid for by you. These fees and charges provide the ability for up to four additional employees of your organization to have access to the Service.  Your organization is responsible for identifying these individuals and providing Runzheimer with a single business email address for each of them so that they can be set up with their own user ID and password for the Service.  No access to the Service beyond five total employees will be permitted without your organization obtaining a valid survey license from Runzheimer.  Your organization shall pay all applicable taxes relating to use of the Service.

 

12. TERM; TERMINATION

The term of these Terms and Conditions shall commence as of the date of your acceptance below, and shall continue for a period of one year.  The term shall automatically renew thereafter upon the same terms and conditions (subject to changes in fees as described in Section 11) unless Runzheimer or you provide written notice of termination to the other at least [thirty (30)] days prior to the expiration of the initial or any renewal term.  You agree that Runzheimer may, under certain circumstances and without prior notice, immediately terminate your access to the Service for cause. Cause for such termination shall include, but not be limited to, (a) breaches or violations of these Terms and Conditions, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), and (e) unexpected technical or security issues or problems. Termination of your Service includes (a) removal of access to all offerings within the Service, (b) deletion of your user ID and password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring further use of the Service.  Further, you agree that all terminations for cause shall be made in Runzheimer's sole discretion and that Runzheimer shall not be liable to you or any third-party for any termination of your account, any associated email address, or access to the Service or for a refund of a portion or all of any fees associated with you or your organization’s membership in Runzheimer’s Benchmarking Service.

 

13. DISCLAIMERS, LIMITATION OF LIABILITY AND REMEDIES

a.     You expressly agree that use of the Service is at your own risk. Neither the Service, Runzheimer, nor any of their affiliates, employees, agents, content providers or licensors may make any representations or warranties of any kind regarding the Service, the Runzheimer Content or the results that may be obtained from use of the Service. The Service is provided on an "as is" basis  and Runzheimer rejects and disclaims all warranties, whether express or implied, including without limitation, warranties of fitness for a particular purpose, warranties of merchantability or warranties against infringements, warranties by sample or demonstration, or warranties of the accuracy, completeness, thoroughness or precision of any of the information or data contained therein.

b.       Your organization has no authority to, and shall not, make any representations or warranties to any parties concerning this Service and will indemnify and hold Runzheimer harmless from and against all costs, expenses, claims and liabilities arising from or related to any warranties or representations it may make in violation of the foregoing prohibition.

 

c.        Runzheimer shall have no liability to your organization or any third party arising out of any sale or use of this Service or any error, omission, defect or failure therein, even if the same is caused in whole or in part by the negligence of Runzheimer.  In no event will Runzheimer be liable for indirect, special, or consequential damages of any kind, even if it has been advised of the possibility of such damages.  In the event any of the foregoing limitations are determined by any court to be invalid or unenforceable, then Runzheimer's liability in any case shall not exceed its annual charge for this Service.

 

d.       As your organization's sole and exclusive remedy against Runzheimer in case any report generated by your organization using this Service contains any material inaccuracies or defects resulting from Runzheimer's negligence or willful misconduct, Runzheimer shall, at its sole and exclusive option, either refund to your organization the annual charge for the Service, or, at Runzheimer’s cost, provide another copy of such report with the reported material errors substantially corrected.

 

14.    MISCELLANEOUS

 

a.        You may not assign your rights to and under these Terms and Conditions to any other party without the express written prior consent of Runzheimer, which consent will not be unreasonably withheld.  For purposes of this provision, the sale of all or substantially all of your assets, or the control of a majority of your voting common stock or voting equity units, is deemed an assignment subject to this prohibition.  Runzheimer may freely assign its rights to and under these Terms and Conditions.

 

b.       These Terms and Conditions contain the complete agreement of the parties on its subject matter and supersede all prior or contemporaneous agreements, discussions or understandings related thereto.

 

c.        The findings by any court of competent jurisdiction that any provision of these Terms and Conditions or part hereof is unenforceable shall not affect the enforceability of the remaining provisions of these Terms and Conditions.

 

d.       Failure of either party to enforce its rights under these Terms and Conditions shall not constitute a waiver of such rights.

 

e.        These Terms and Conditions are governed by and construed in accordance with the laws of the State of Wisconsin except for its laws relating to conflict of laws.

 

f.         The parties to these Terms and Conditions are independent contractors.  Nothing in these Terms and Conditions or in the business contemplated herein shall be deemed to create a partnership, joint venture or any relationship between the parties other than independent contractors.

 

15.    DISPUTE RESOLUTION

 

Any dispute between the parties arising out of or in connection with these Terms and Conditions will be resolved by federal or state courts located in Milwaukee County, Wisconsin, to which exclusive jurisdiction each party hereto irrevocably consents. The prevailing party may recover from the other party all of its reasonable costs, expenses and attorneys fees incurred in connection with such proceedings.