EvaluationKIT (“we” or “EvaluationKIT”) is owned and operated by EvaluationKIT, LLC. We provide and maintain this website (the “Site”) for the benefit of users of our services (“you” or “User”). We provide temporary use of non-downloadable software for creating and conducting individualized course evaluations, surveys, and other feedback and data collection activities (the “Services”).
Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Services. If you are using the Services in your capacity as an employee, you must have the ability to bind your employer by your use of the Services.
ACKNOWLEDGMENT AND ACCEPTANCE.
In using the Site or the Services, you agree to the following responsibilities:
- Compliance with our Anti-Spam policy. Please see ANTI-SPAM Section below.
- Lawful use of the Services only. Please see OTHER PROHIBITED USES Section below.
- Creation, maintenance and management of your information in your account.
- Payment of all agreed required fees.
- Full responsibility for all activity associated with your use of our Site and Services.
We reserve the right to deactivate your account(s) as we deem appropriate or necessary, without notice. You enter and use the Site and the Services at your own risk. We are not responsible for your course evaluations, surveys, content, feedback, data collection activities , results or questions from enrollments, or any other matter concerning your use of the Site or the Services. We recommend that you keep track of your responses, feedback, results and other data in your own personal records, as we reserve the right to discontinue your account(s) or terminate the Services at any time. We are not responsible for the deletion of any data that is in or has been added to your account(s).
MODIFICATION TO SERVICES PROVIDED.
PAYMENT TERMS; CANCELLATION.
You agree to pay, and we will automatically charge, all account fees, including any applicable taxes, at the rates in effect when the fees are incurred. We may change the fees then in effect, or add new fees, by giving you advance notice. Except as otherwise agreed to by EvaluationKIT, you must provide us with valid credit card information, and you must promptly update the Account Information page in EvaluationKIT with any changes in credit card validity or expiration date. We will keep your credit card information confidential. If payment cannot be charged to the credit card you have on file with us, we reserve the right to suspend or terminate your account(s) and access to the Services. No refunds of subscription or enrollment fees will be given.
REGISTRATION & PASSWORD.
You must complete the registration form on the EvaluationKIT sign up web page in order to use the Services. You agree to provide true, accurate, current, and complete information as requested in the registration form and you agree to update and keep that information current as needed. You will provide a password in order to access the Services and your account(s). Email login must be a valid email address maintained by you. You are responsible for maintaining the security and confidentiality of your password and account information. EvaluationKIT will not be responsible for the actions of any individuals who misuse or misappropriate your contact lists using your username and password. You will immediately notify us of any unauthorized account activity, or any unauthorized use of your email list(s) or any other breach of security you become aware of.
We are committed to protecting the privacy and confidential information of Users. You are responsible for all decisions with respect to the personally identifiable information of persons that respond to your course evaluations, surveys or data collection activities or to whom you send course evaluations or surveys. You represent and warrant that your course evaluations, surveys or other data collection activities will not target children under 13 and that you will not knowingly collect personally identifiable information from children under 13.
The disclosure of information from student records is governed by the Family Educational Rights and Privacy Act (“The Buckley Amendment” or “FERPA”). EvaluationKIT highly respects the privacy of students. EvaluationKIT will not make available or distribute any student information in violation of the FERPA, and such student information shall be considered to be Confidential Information under this Agreement.
We agree not to use any of your Confidential Information (defined below) for any purpose except to operate the Site and provide the Services in accordance with this Agreement. We agree not to disclose any of your Confidential Information to any third party other than to our employees and consultants who are bound by confidentiality obligations and are required to have access to the Confidential Information in order to operate the Site and provide the Services. Nothing in this Agreement limits our right to independently develop, acquire or market products, ideas, or businesses, without use of your Confidential Information. “Confidential Information” may include, solely to the extent entered into the Services or Site by you, (a) technical information, know-how and other intellectual property, to the fullest extent that such information is maintained as a trade secret by you; and (b) confidential financial information (including pricing). Confidential Information will not include any information that (i) was publicly known and generally available in the public domain prior to the time of disclosure by you; (ii) becomes publicly known and generally available after disclosure by you through no action or inaction of ours; (iii) is already in our possession at the time of disclosure by you; (iv) is obtained by us from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by us without use of your Confidential Information; or (vi) is required by law to be disclosed by us, provided that we give you prompt written notice of such requirement prior to such disclosure.
EvaluationKIT has taken a “zero tolerance” stand against spam. You acknowledge, warrant and agree that:
- You will use the Services only in compliance with this Agreement, the federal CAN-SPAM Act and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws).
- You will not engage in any spamming activities in your use of the Services.
- You understand that EvaluationKIT is serving as “host” and is not the sender or originator of any of the Services, and that you are solely responsible for your email and other activities using the Services.
- Your use of the Site will be for lawful purposes.
- You either have an ongoing business or personal relationship with or have obtained consents to send email messages inviting participation in the Services to the persons on your list.
- Your use of the Site and Services will not violate any U.S. or foreign spamming, junk mail or other related laws or regulations prohibiting or discouraging unsolicited mail.
- You will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Services.
- You acknowledge and agree that not all messages sent through use of the Services will be received by their intended recipients.
- If you engage in any unlawful spamming activity, EvaluationKIT will report such conduct to the appropriate authorities and turn over any and all information, including personally identifiable information, to appropriate law enforcement persons or entities.
- You will comply with all laws, rules and regulations regarding transmission of technical data exported from the United States.
OTHER PROHIBITED USES.
You acknowledge, warrant and agree that:
- You will not transmit through the Services or the Site any pornographic, obscene, offensive, threatening, harassing, libelous, hate-oriented, harmful, defamatory, racist, illegal or otherwise objectionable material or content.
- You will not send any transmission that attempts to hide your identity or represents you as someone else.
- You will not use the Services or the Site to send any materials, including course evaluations or surveys and requests to take course evaluations or surveys, to any persons under 18 years of age unless and until you have taken and follow all necessary action and compliance pursuant to state and federal laws.
- You will not upload or distribute in any way any files that contain viruses, corrupted files or any similar software or programs that may damage the operation of anyone else’s computer, the Services or the Site.
- You will not interfere or disrupt networks connected to the Services and the Site.
- You will not provide content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
Any attempt by you to gain unauthorized access to any computer system, including accounts, lockers or databases maintained by and for EvaluationKIT, is strictly prohibited. Any attempt by you to transmit, publish or distribute material or content that promotes, provides or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group is strictly prohibited. We will terminate, without notice, the account(s) of any User determined to have engaged in any activity set forth in this section.
DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND THE SITE IS AT YOUR SOLE RISK. THE SERVICES AND THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EVALUATIONKIT DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, VIRUS-FREE, ERROR FREE, ACCURATE OR RELIABLE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
TO THE FULLEST EXTENT ALLOWED BY LAW, EVALUATIONKIT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE CONTENTS OF THE SERVICES OR THE SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. EVALUATIONKIT ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN CONTENT.
EVALUATIONKIT IS NOT RESPONSIBLE FOR, AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE CONTENTS, CONSEQUENCES OF, OR USE OR USEFULNESS OF ANY COURSE EVALUATION, SURVEY OR INVITATIONS TO RESPOND TO COURSE EVALUATIONS OR SURVEYS OR INVITATIONS TO VIEW RESULTS CREATED ON OR THROUGH THE SERVICES, NOR IS IT RESPONSIBLE FOR THE RESPONSES SUBMITTED TO OR RELIABILITY OF ANY COURSE EVALUATION OR SURVEY OR FOR THE RESULTS GENERATED BY COURSE EVALUATIONS OR SURVEYS.
EVALUATIONKIT IS NOT RESPONSIBLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION OR OTHER LOSS RESULTING FROM USE OF OR RELIANCE IN ANY WAY ON ANY THE SERVICES OR RESULTS CREATED ON OR THROUGH THE SERVICES OR THE SITE. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF THE SERVICES, RESPONSES, RESULTS OR OTHER INFORMATION RECEIVED WHILE USING THE SERVICES OR SITE.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICES OR SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR SITE OR THROUGH THE SERVICES OR SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for EvaluationKIT to use commercially reasonable efforts to adjust or repair the Services. At your request, EvaluationKIT’s service personnel will access your account as related to the Services for the purpose of troubleshooting issues that arise in your use of the Services.
LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL EVALUATIONKIT OR ANY OF ITS OFFICERS, MANAGERS, EMPLOYEES, UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS OR LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF YOUR ACCESS TO, USE OF, INABILITY TO USE, OR RELIANCE ON THE SERVICES, RESPONSES OR RESULTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, EVALUATIONKIT IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF EVALUATIONKIT TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY EVALUATIONKIT TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
IF YOU ARE DISSATISFIED WITH THE SERVICES, THE MATERIALS AVAILABLE ON OR THROUGH THE SERVICES OR THE SITE, OR WITH ANY OF THE TERMS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES AND LEAVE THE SITE IMMEDIATELY.
This Site, and the information which it contains, is the property of EvaluationKIT and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, “EvaluationKIT” and the EvaluationKIT logo are trademarks or registered trademarks of EvaluationKIT, under the applicable laws of the United States and/or other countries. Other EvaluationKIT product or service names or logos appearing in this Site are either trademarks or registered trademarks of EvaluationKIT and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of EvaluationKIT’s trademark or other intellectual property rights concerning that name or logo.
EvaluationKIT owns and retains all copyrights and other intellectual and/or proprietary rights in the content including the graphics, names, text, images, documentation, data, illustrations, software, music, videos, sound, pictures, compilations, survey templates, surveys, page layout, design, processes, procedures, magnetic translation, digital conversion, code and/or software or other material (the “Material”) contained in the Services and the Site to the extent such content is provided and/or designed by EvaluationKIT. UNAUTHORIZED COPYING, REPRODUCTION, REPUBLISHING, UPLOADING, DOWNLOADING, POSTING, TRANSMITTING OR DUPLICATING THE MATERIAL, IN WHOLE OR IN PART, IS PROHIBITED. This is an Agreement for Services and access to this Site, and EvaluationKIT is not granting you a license to any Material owned by EvaluationKIT by this Agreement. You are permitted to use the Services and the Site as authorized herein to create course evaluations, surveys, and other feedback and data collection activities and to view responses and results for your personal use as an end product only. While your account is active, you will have the right to access your course evaluations, surveys, responses, results and related data, and you assume the entire risk of disclosing such content to third parties.
You agree not to, directly or indirectly: distribute in any way, license or sublicense, sell or trade, pledge, assign, reproduce, modify, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Material, the Services or any software, documentation, or data related to the Services (“Software”); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software. Moreover, you may not use the Site to appropriate EvaluationKIT’s trademarks or tradedress and/or to copy or imitate the “look and feel” of the Site, or any portions thereof, for any reason. Modification or use of EvaluationKIT’s Services in any prohibited way is a violation of copyright and other proprietary laws.
NO MISAPPROPRIATION OR MISUSE OF NAMES, MARKS, OTHER PROPRIETARY MATERIAL.
You agree not to use, misuse or misappropriate any brand names, trademarks, service marks, patents, images, text or other proprietary material or content of another on or through the Services or the Site. You agree that you will not upload or transmit any contact lists, communications or content of any type to this Site or in connection with the Services that infringe, misappropriate or violate any rights of any party. If you use any such proprietary material or content, by doing so, you warrant that you have the right and authority to do so.
NOTICE AND TAKE DOWN PROCEDURES; COPYRIGHT AGENT.
If you believe any materials accessible on or from this Site infringe your copyright, you may request removal of those materials (or access thereto) from this Site by contacting EvaluationKIT and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work;
- Your name, address, telephone number and (if available) e-mail address;
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law;
- A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf;
- A signature or the electronic equivalent from the copyright holder or authorized representative.
EvaluationKIT may delete any of your archived data 30 days after the date of termination. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers, indemnification and limitations of liability.
The Services shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Services or any Software for time-sharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Services in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Services, then you hereby covenant that, prior to engaging in such activities, you will first request that EvaluationKIT perform such work at its standard professional services rates. EvaluationKIT can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability; or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
RESTRICTED PERSONS; EXPORT OF SERVICES OR TECHNICAL DATA
You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Services is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify EvaluationKIT within twenty-four (24) hours, and EvaluationKIT shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to EvaluationKIT.
You agree that you shall not utilize the Services to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
EvaluationKIT and you agree that all waivers and modifications to this Agreement must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind EvaluationKIT in any respect whatsoever.