We at DACQS, LLC ("DACQS"), a Missouri limited liability company appreciate you using our services. DACQS provides the DACQS platform to its Clients. The DACQS platform (the "Platform") is a software as a service (SaaS) web application that enables Clients to manage the process of creating and sending web evaluations and to process, generate, and download reports based on Participant data (the "Data" or the "Information").
The DACQS platform is contracted by users by DACQS to allow use of the DACQS platform and have legally obtained access to the DACQS platform. If you as a user are using the DACQS platform for an organization, you agree and represent that you have the authority to agree to this Agreement for that organization.
1. RESPONSBILITIES OF DACQS
DACQS will give to the user a user email address(es) and password(s) for accessing and using the DACQS platform, and technical support including teaching to the user how to use the DACQS platform. If the user wants to keep their identity unknown with respect to the user's evaluation options, DACQS will not identify an evaluation participant with a particular set of participant data.
2. RESPONSBILITIES OF THE USER
The DACQS platform enables the user to create evaluations and the evaluation process. The user will be responsible to at a least take part in training done by DACQS, create and administer the evaluations, provide and maintain valid contact information to DACQS, distribute all evaluations so that the responses can be collected and download within a reasonable time that is also prior to the end of the user's license, and include reasonable means to preserve confidentiality of email addresses and passwords. The DACQS contract may be terminated and use of the DACQs platform maybe stopped if reasonable means to preserve confidentiality of email addresses and passwords is not included by the user.
DACQS grants a license to the user to use and access the DACQS platform. This license is limited, non-exclusive, non-transferable, revocable, and only for the time and purposes stated in the DACQS contract to which the user is a party to the contract.
In the future, DACQS may include additional items for the DACQS platform. The items may include sample evaluations and educational material. The items be in the DACQS platform or through email. The user is granted a limited license to use the items solely for the business of the user. The user agrees to use the DACQS platform only per the terms and purposes of this Agreement.
4. USE OF DACQS PLATFORM
The user may use the DACQS platform only for the period mentioned in the DACQS contract. This use is also dependent upon the below payment requirements. The period of the user's use of the DACQS platform may be terminated for failure of the user to pay in accordance with the terms of the contract. The DACQS platform is provided on a contract basis unless otherwise stated.
6. SECURITY AND PASSWORDS
The user is responsible for keeping the user's password and any other credentials used to access the user's account or the DACQS platform safe. If the user becomes aware of any unauthorized access to the user's account or other part of the DACQS platform, the user should notify DACQS immediately.
The user shall keep ownership of any of the user's intellectual property rights in their data. DACQS does not have ownership for any of the user's data nor does this agreement grant DACQS licenses or right to the user's data, except for the limited rights necessary for DACQS to provide use of the DACQS platform, and as otherwise mentioned in agreement.
All personally identifiable information will be permanently deleted by DACQS within 30-days of ending support for an active DACQS contract term. DACQS reserves the right to delete the user's data that is older than 3 years from its database at any time. DACQS shall provide 30 days written notice to the user before DACQS deletes the user's data from its data base that is older than 3 years. The user is solely responsible to back-up and download all data collected via the DACQS platform. DACQS will not be liable for data deleted from its database in accordance with these terms.
8. USES NOT PERMITTED BY USER
The below acts are not permitted by the user or any employee or third party under the user's direction and if done may result in the immediate termination of the DACQS contract and the use of the DACQS platform as well as other remedies permitted by law.
(a) The user or any employee or third party under the user's direction may not copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the DACQS platform in order to ascertain the source code for the DACQS platform;
(b) The user or any employee or third party under the user's direction may not transmit pornographic, obscene, threatening, defamatory, harassing, hate-oriented, racist, illegal, or otherwise objectionable material using the DACQS platform;
(c) The user or any employee or third party under the user's direction may not hide the identity of any sender of electronic communications;
(d) The user or any employee or third party under the user's direction may not interfere with, disrupt or manipulate the DACQS platform, its networks or servers;
(e) The user or any employee or third party under the user's direction may not successfully gain or attempt to gain unlawful or unauthorized access to the DACQS platform or accounts, systems and networks connected to the DACQS platform by password mining or other unauthorized means;
(f) The user or any employee or third party under the user's direction may not engage in any activity that violates any law, including, but not limited to the spamming laws, the Health Insurance Portability and Accountability Act, the Children's Online Privacy Protection Act, or any third party right, including infringing any intellectual property right of another, privacy right or publicity right; send, or promote or condone the sending of unsolicited email to individuals not affiliated with the user;
(g) The user or any employee or third party under the user's direction may not upload, download, or distribute files that contain viruses, do not meet the specifications of file type indicated by DACQS, corrupted files or software. Any third party software embedded in the DACQS platform may be used only in conjunction with the DACQS platform and may not be used separately; or
(h) The user or any employee or third party under the user's direction may, if deploying anonymous evaluations, take all necessary steps to prevent linking an evaluation response to the identity of that participant. The user shall not perform any Data analysis, plant any identifying Data or send email invitations in such way that that would link the identity of participants to their responses. If such information becomes available accidentally or through actions of the user, the user shall notify DACQS immediately and refrain from revealing the identity of any participant to any other individuals inside or outside the user's organization. The user shall at all times commit to the level of care necessary to ensure compliance with the features that enable deployment of anonymous evaluations.
Also, the DACQS platform offers technical support by DACQS staff to assist the users in the use of the DACQS platform. The user limited to a reasonable use of these resources unless the user receives permission from DACQS to use more than the reasonable use. If the user posts any content that is in violation of these Terms or the law, DACQS reserves the right to remove such content without notice or terminate the DACQS contract with the user.
9. INTELLECTUAL PROPERTY RIGHTS:
DACQS owns all right, title, and interest in and to the DACQS platform, and items in the platform as well as DACQS patents, copyrights, trademarks trademarks, trade names, know-how and trade secrets of and relating to the DACQS platform, including any and all evaluations created by DACQS prior to consulting with the user, and all Reports, Findings, and Analysis created by DACQS (all collectively "Intellectual Property").
The user shall not remove any copyright or trademark notices associated with copyrights and trademarks of DACQS unless DACQS provides permission to do so.
The user owns all right, title and interest in its own intellectual property, evaluations independently developed by the user using the DACQS platform do so long as they are not derived from DACQS Intellectual Property and also their participants responses collected through the DACQS platform.
The user grants DACQS a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit the user's intellectual property, but only for the limited purposes of providing the DACQS platform to the user and as otherwise permitted by the DACQS Privacy Policies. This license also extends to any trusted third parties DACQS works with to the extent necessary to provide the DACQS platform to the user. If the user provides DACQS with feedback about the DACQS platform, DACQS may use the user's feedback without any obligation to the user.
10. PAYMENT RESPONSIBILITIES
Clients shall pay all fees stated in the DACQS contract on the dates specified in the DACQS contract. Payment for the first year of multi-year contracts will be Billed On the signing of the DACQS contract, and will be Due By 30 days from the date of its signature.
No refund shall be given prior to six-months from the date of the signing of the DACQS contract. All refunds after six months will be prorated on a monthly basis; any amount of days within a month constitute one full month.
DACQS may assess a late fee of 1.5% per month on any balance that remains unpaid after the date that the balance is due. Failure to pay any invoice within 60 days of the date that the balance is due is a material breach of this Agreement that entitles DACQS to immediately end access to the DACQS platform without further notice and demand payment in full for all outstanding amounts, including payments owed through the duration of the minim six-months from the date of the signing of the DACQS contract, and accrued late fees.
The fees charged for the DACQS platform may be subject to change. Any change in fee will be assessed only on new DACQS contracts. Existing contracts will remain at the original fee as stated on the signing of the original DACQS contract.
11. CHANGES TO DACQS PLATFORM
DACQS may change the DACQS platform in the form of software upgrades and software releases. DACQS owns all right, title, and interest in and to such changes.
Functionality from the DACQS platform may be added, changed or deleted by DACQS without prior notice. DACQS may also limit, suspend, or discontinue functionality from the DACQS platform at its discretion. If DACQS discontinues functionality from the DACQS platform, DACQS will give the user reasonable prior notice so that the user has an opportunity to export a copy of their Data from the DACQS platform. DACQS may remove content from the DACQS platform at any time at its sole discretion, although DACQS will notify the user before doing so if it impacts the user and if practicable under the circumstances.
DACQS may introduce new products and services to the existing DACQS platform. Unless this included in the user's existing DACQS contract, DACQS reserves the right to decide whether or not the new products and services will be made available to the user for free or at an addition cost.
12. DISCLAIMERS AND LIMITATIONS OF LIABILITY:
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW FOR THE WARRANTY ABOVE, DACQS PROVIDES THE DACQS PLATOFRM "AS IS" AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUIET ENJOYMENT. DACQS IS DEPENDENT ON CERTAIN THIRD-PARTIES AND ON MATTERS OUTSIDE ITS CONTROL FOR DELIVERING THE DACQS PLATFORM. DACQS GOAL IS TO KEEP THE DACQS PLATFORM RUNNING. HOWEVER, THE DACQS PLATFORM MAY BE UNAVAILABLE FOR TIME TO TIME FOR VARIOUS REASONS. ANY MATERIAL OR DATA OBTAINED OR DOWNLOADED THROUGH THE DACQS PLATFORM IS DONE AT THE USER'S OWN RISK. DACQS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF DACQS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
DACQS LIABILITY FOR DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO DACQS FOR USE OF THE DACQS PLATFORM DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$500.00.
The user agrees to indemnify and hold harmless DACQS and its affiliates, officers, agents, and employees from all liabilities, damages, and costs including settlement costs and reasonable attorneys' fees arising out of a third party claim regarding or in connection with the user's use of the Services or breach of these Terms, to the extent that such liabilities, damages and costs were caused by the user.
14. CONFIDENTIAL INFORMATION:
The DACQS platform may require the use and disclosure of certain confidential information. The user shall hold in confidence and shall not use or disclose to any third party, or use for any purpose other than as expressly authorized in this Agreement, the terms and pricing of the DACQS platform under this Agreement, any software or documentation related to the DACQS platform, DACQS sample questions and templates, trade secrets, technical know-how, inventions, Materials, product development plans, pricing, marketing plans, client lists and email addresses, distribution lists and all responses from evaluations, the know-how, proprietary, strategy on communications, reports, and findings, whether disclosed orally or in writing, or other information understood to be DACQS' confidential information received from the other party (all hereinafter, "Confidential Information"). Confidential Information does not include information that: (a) is publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the user; (b) discovered or created by the user before disclosure by DACQS; (c) learned by the user through legitimate means other than from the DACQS; or (d) is disclosed by the user with prior written approval by DACQS.
This Agreement shall become effective on the Contract Start Date and terminate on the Contract End Date specified in the DACQS contract executed by user. Upon termination of this Agreement, the user shall not use the DACQS platform immediately.
DACQS may immediately terminate this Agreement in response to a material breach or any action that in DACQS' discretion fails to comply with the terms of this Agreement. DACQS may terminate this Agreement for any reason by providing 30 days written notice. If DACQS terminates this Agreement for any reason not constituting a breach of this Agreement by the user, DACQS must refund to the user unused charges on a pro-rata basis. The user shall remain responsible for all charges due through the Contract End Date if termination is for any other reason.
16. GENERAL PROVISIONS:
Governing State. This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, without regard to principles of conflicts of law. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought in a court of competent jurisdiction in Saint Louis County, Missouri.
Entire Agreement. This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations, and understandings. This Agreement may not be amended except in a writing signed by both parties.
Changes to Terms. DACQS may require changes to any term or condition of this Agreement due to changes in the law or updates to the DACQS platform by giving written notice of any material changes to this Agreement. Changes will be effective no sooner than the day written notice is provided to the user. If the user does not agree to any changes made to the terms for the DACQS platform, the user should stop using the DACQS platform. User will be bound by the updated terms if the user continues to use the DACQS platform.
Waiver. The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
Force Majeure. Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of the affected party including but not limited to fire, floods, embargoes, war, acts of war (whether war be declared or not), acts of terrorism, outages, general Internet brown-outs or black-outs or shortage of bandwidth; hacking insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority or the other party.
Transfer of Rights. The user shall not assign or otherwise transfer the rights under this Agreement by operation of law or otherwise, without DACQS' prior written consent. Any entity that acquires merges with, or otherwise combines in any manner with the user shall not acquire any rights to the DACQS platform under this Agreement, without DACQS' prior written consent. DACQS reserves the right to assign this Agreement and the Services provided herein.
Severability. If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.
Recovery. DACQS shall in any legal action or proceeding be entitled to recover from the End User all costs and reasonable attorneys' fees it incurred in response to any breach of the terms of this Agreement by the user.
This Agreement and each party's obligations shall be binding on the representatives, assigns, and successors of such party. Each party has signed this Agreement through its authorized representative. User shall not assign or otherwise transfer the rights under this Agreement by operation of law or otherwise, without DACQS' prior written consent.
Last Updated: 2019-09-13