Pascal Metrics Inc. - Terms of Service

Acceptance of Terms

Pascal Metrics Inc. (referred to here as "Pascal") provides its website located at www.pascalmetrics.com (the "Site"), including its subdomains, to its client (“Client”) subject to this Terms of Service agreement ("TOS"). By accepting this TOS or by accessing or using the Site, Client acknowledges that it agrees to be bound by this TOS. If you are entering into this TOS on behalf of a company or other legal entity, you represent that you have the authority to bind the Client entity to this TOS, in which case the term "Client" shall refer to such entity. If you do not have such authority, or if Client does not agree with this TOS, Client must not accept this TOS and may not use the Site.

Pascal may change this TOS from time to time without prior notice. Client can review the most current version of this TOS at any time at http://www.pascalmetrics.com/termsofservice. The revised terms and conditions will become effective upon posting and if Client uses the Site after that date, Pascal will treat Client’s use as acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to Client, Client’s only remedy is to stop accessing and using the Site.

Description of Site

The "Site" includes (a) the Site, and all the services made available via the Site, including HealthBench®, Risk Trigger® Monitoring, Pascal Survey, and (b) all software, data, text, images, sounds, video, and content made available through the Site, collectively referred to as the "Content". Some of these features and services require a separate written agreement executed between Client and Pascal. Any new features added to or augmenting the Site are also subject to this TOS.

General Conditions / Access and Use of the Site

Subject to the terms and conditions of this TOS, Client may access and use the Site and Content only for Client’s internal business purposes. Client shall not nor allow any third party to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Site or Content available to any third party, other than as expressly permitted by this TOS; (b) use the Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party's use and enjoyment of the Site, (c) use the Site in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Site and its components; (d) modify, decompile, disassemble or reverse engineer the Site for any purpose whatsoever; (e) copy, frame or mirror any part or content of the Site; (f) access the Site in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Site, or (g) use the Site to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, or store or transmit any virus or other malicious code through the Site.

Subject only to the limited right to access and use the Site expressly granted to Client under this TOS, all right, title and interest in and to the Site and its components, and all derivative works thereof, will remain with and belong exclusively to Pascal. Client shall not modify, adapt or hack the Site to falsely imply any sponsorship or association with Pascal, or otherwise attempt to gain unauthorized access to the Site or its related systems or networks.

Client is responsible for all information, data, text, messages or other materials that Client posts or otherwise transmits via the Site. Client is responsible for maintaining the confidentiality of Client’s login and account and is fully responsible for any and all activities that occur under Client’s login or account. Client will ensure that its account privileges are restricted to its own use. Client will not share accounts, nor grant accounts to others nor otherwise extend its own authorized access privileges to any third party. Client will use its accounts only for the purposes for which they were authorized and will not access any other accounts. Client will not implant, execute or use software that captures passwords or other information while the data are being entered at the keyboard or other data entry device. Client will immediately report to Pascal any known breach of any security safeguards by third parties that are related to the Content or the Site. All use of the Site is assumed to be performed by the person assigned to that account. Client will ensure that: (a) security procedures that implement the requirements in this TOS are prepared and maintained; (b) precautions are taken to guard against corruption, compromise or destruction of the Content and/or the Site; (c) access to the Site is only assigned to authorized users; and (d)
access to root or privileged supervisory accounts is granted only to those
employees who have need for such access.

Client will provide accurate, current and complete information as may be prompted by a registration form on the Site (the "Registration Data"). Client will maintain and promptly update the Registration Data, and any information Client provides to Pascal, to keep it accurate, current and complete. Client accepts all risks of unauthorized access to Content and Registration Data by its employees, contractors and agents. Client will immediately report to Pascal any known breach of any security safeguards by third parties that are related to the Content or the Site.

Pascal reserves the right to access any or all of Client’s accounts in order to respond to Client’s requests for technical support. Pascal shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Client’s data. Pascal will not disclose Client’s data except if compelled by law or if permitted by Client.

Client understands that the technical processing and transmission of the Site, including Client’s content, may be transferred unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Pascal' third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Site. Pascal will use reasonable efforts to publish on the Site or notify Client of any planned downtime of the Site.

The failure of Pascal to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. Client acknowledge that this TOS is a contract between Client and Pascal, even though it is electronic and is not physically signed by Client and Pascal, and it governs Client’s use of the Site and takes the place of any prior agreements between Client and Pascal; provided that this TOS will be superseded to the extent inconsistent with any signed agreement between Pascal and Client specifically concerning Client’s use of the Site.

Trademarks

HealthBench®, Risk Trigger® Monitoring and Pascal's various logos used or displayed on the Site are trademarks of Pascal, and Client may only use these trademarks or logos for promotional purposes to identify Client as a customer or user of the Pascal products and services, provided Client does not attempt to claim ownership of the marks by incorporating any of them within Client’s names or offerings. Client will comply with any standards for use that Pascal may post on the Site concerning these trademarks and logos. Any goodwill accruing from the use of these trademarks and logos shall inure to Pascal.

Cancellation and Termination

In order to protect the security and integrity of the Site against unauthorized or improper use, and to protect authorized users from the effects of such abuse or negligence, Pascal reserves the right, in its sole discretion, to limit, restrict, or terminate any account or use of the Content or the Site, and to inspect, copy, remove or otherwise alter any data, file, or system resources which may undermine authorized use. Pascal also reserves the right to take such other actions as in its sole discretion it deems necessary to protect the Content and the Site.

Pascal will use all reasonable efforts to contact Client directly via email to warn Client prior to suspension or termination of Client’s account. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Client’s use of Site may be referred to appropriate law enforcement authorities. Pascal shall not be liable to Client or any third party for any modification, suspension or discontinuation of the Site.

Disclaimer of Warranties

THE SITE AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW AND PASCAL METRICS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CLIENT ACKNOWLEDGES THAT PASCAL METRICS DOES NOT WARRANT THAT THE USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR ADVICE OBTAINED BY CLIENT FROM PASCAL METRICS OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.

Limitation of Liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL PASCAL BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION. IN ADDITION, PASCAL SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF FIVE HUNDRED DOLLARS (US$500). THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT, AND THESE PROVISIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.

Some U.S. states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Client. IN THESE STATES, PASCAL’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

Indemnity

Client will indemnify and hold harmless Pascal, and its directors, officers, employees, agents, successors and assigns from and against any and all loss, damage, liability, and expense arising from any claim brought against any such indemnified party by any third party in connection with Client’s use of the Site, Client’s violation of this TOS, Client’s violation of any third party right, including any intellectual property right, or any claim that use of Client’s content caused damage to a third party. This indemnity obligation will survive the termination or expiration of Client’s account and this TOS.

Assignment

Pascal may assign or transfer this TOS, in whole or in part, without restriction.

Compliance with Laws

Client is responsible for complying with any applicable laws, rules, or regulations governing Client’s use of the Site, including without limitation, the export of the Site or any of its components. Client shall not and shall not allow any third party to use the Site or any of its components: (a) in (or by a national or resident of) any embargoed or terrorist-supporting country; (b) by anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) in any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Client further warrants that Client is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Site is also restricted from being used for terrorist activity, or for the design or development of nuclear, chemical, or biological weapons or missile technology, without the prior permission of the United States government.

Governing Law

This TOS shall be governed by the laws of the State of Delaware without regard to the principles of conflicts of law. Client hereby expressly agrees to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Delaware for the purpose of resolving any dispute relating to Client’s access to or use of the Site.

Relationship of Parties 

Pascal and Client are independent contractors and this TOS will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Client and Pascal.

Entire Agreement and Severability

This TOS constitutes the entire agreement between the parties concerning the subject matter hereof. The provisions of this TOS will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of this TOS is declared to be unenforceable for any reason, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties.

Government User

If the software being used in the Site is being used by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense ("DOD") acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government's rights in such software and any documentation, including its rights to use, modify, reproduce, release, perform, display, or disclose software or any documentation, shall be subject in all respects to the license rights and restrictions provided in this TOS.