This Online Personality Instrument Services Agreement (this “Agreement“) is a binding contract between you, an Authorized User of the Real Colors Personality Instrument (“you,” or “your“) and National Curriculum and Training Institute, Inc., an Arizona corporation (“Real Colors,” “we,” or “us“). This Agreement governs your access to and use of the Personality Instrument.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE PERSONALITY INSTRUMENT (the “Effective Date“). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE PERSONALITY INSTRUMENT YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE PERSONALITY INSTRUMENT.
(a) “Authorized User” means Customer and Customer’s employees, consultants, contractors, or agents (i) who are authorized by Customer to access and use the Personality Instrument under the rights granted to Customer pursuant to this Agreement, (ii) for whom access to the Personality Instrument has been purchased hereunder by Customer, and (iii) have been provided an access key by Customer.
(b) “Customer” means the person, entity or organization that has contracted with Real Colors to provide the Personality Instrument to its Authorized Users.
(c) “Personality Instrument” means the services provided by Real Colors under this Agreement that are detailed on Real Colors’ website available at HYPERLINK “http://www.realcolors.” www.realcolors.org as reflected in more detail in the Customer’s order from Real Colors.
(d) “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Personality Instrument. Customer Data includes but is not limited to names, Personality Instrument results, and other personal information.
(e) “Documentation” means Real Colors’ user manuals, handbooks, and guides relating to the Personality Instrument provided by Real Colors to Customer either electronically or in hard copy form.
(e) “Real Colors IP” means the Personality Instrument, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Real Colors IP does not include Customer Data.
2. Access and Use.
(a) Provision of Access. Subject to the terms and conditions of this Agreement, Real Colors hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access the Personality Instrument during the Term solely for the Customer’s internal business operations by Authorized Users in accordance with the terms and conditions herein.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Real Colors hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to access the Documentation during the Term solely for the Customer’s internal business purposes in connection with use of the Personality Instrument.
(c) Use Restrictions. You shall not, and shall not permit Customer or any other Authorized Users to, use the Personality Instrument, any software component of the Personality Instrument, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Personality Instrument, any software component of the Personality Instrument, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Personality Instrument or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Personality Instrument, in whole or in part; (iv) remove any proprietary notices from the Personality Instrument or Documentation; or (v) use the Personality Instrument or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
Without limiting the foregoing, and for the purpose of illustration only, you shall not:
- Take pictures or screen captures of any of the screens of the Personality Instrument;
- Taking any video or pictures of the live virtual training or Personality Instrument;
- Create any derivative works of the Personality Instrument.
(d) Order of Access/Additional Use Restrictions. Your license to use the Personality Instrument and Documentation is expressly conditioned upon the following terms and in the following order:
- The Authorized User must possess a key to access the Personality Instrument and Documentation;
- The Authorized User must complete the Personality Instrument;
- The Authorized User must attend a live workshop facilitated by a certified Real Colors workshop facilitator;
- Once the workshop is completed, the Real Colors instructor will acknowledge Authorized User’s completion and will permit the Authorized User’s access to the Authorized User’s Personality Instrument results and the Real Colors resource library.
(e) Retention of Customer Data. Real Colors will retain all Authorized User names, Personality Instrument results, and other Customer Data for a minimum of eighteen (18) months after the Effective Date and may decide, in its sole discretion, to keep such information for a longer period of time. Customer or any individual Authorized User may request that such Customer Data be deleted at any time.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Real Colors may monitor any Authorized User’s use of the Personality Instrument and collect and compile data and information related to Customer’s use of the Personality Instrument to be used by Real Colors to compile statistical and performance information related to the provision and operation of the Personality Instrument (“Aggregated Statistics“). As between Real Colors and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Real Colors. You acknowledge that Real Colors may compile Aggregated Statistics based on Customer Data input into the Personality Instrument. You agree that Real Colors may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
(g) Reservation of Rights. Real Colors reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Real Colors IP.
(h) Suspension. Notwithstanding anything to the contrary in this Agreement, Real Colors may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Personality Instrument if: (i) Real Colors reasonably determines that (A) there is a threat or attack on any of the Real Colors IP; (B) Customer’s or any other Authorized User’s use of the Real Colors IP disrupts or poses a security risk to the Real Colors IP or to any other customer or vendor of Real Colors; (C) Customer or any other Authorized User is using the Real Colors IP for fraudulent or illegal activities; or (D) Real Colors’ provision of the Personality Instrument to Customer or any other Authorized User is prohibited by applicable law; or (E) Real Colors determines, in its reasonable sole discretion, that a Customer or Authorized User’s use of the Personality Instrument or Documentation is fraudulent or otherwise not compliant with the terms of this Agreement or any other agreement between Real Colors and an Authorized User or Customer (a “Service Suspension“). Real Colors will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
3. Customer Responsibilities.
(a) Acceptable Use Policy. The Personality Instrument may not be used for unlawful, fraudulent, offensive, or obscene activity. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted from time to time.
(b) Account Use. You are responsible and liable for all uses of the Personality Instrument and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
(c) Customer Data. You hereby grant to Real Colors a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Real Colors to provide the Personality Instrument and Documentation to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(d) Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Personality Instrument confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
4. Service Level.
Subject to the terms and conditions of this Agreement, Real Colors shall use commercially reasonable efforts to make the Personality Instrument available to the Customer and authorized Users.
You represent and warrant that you are an Authorized User and that Customer or Real Colors has provided you with an access key to access the Personality Instrument and Documentation.
6. Confidential Information.
Authorized User acknowledges and agrees to the following: (1) Real Colors and the Authorized User’s facilitator has access to their Personality Instrument scores and results and shall retain such scores and results in their sole discretion unless the Authorized User requests the deletion of such information; (2) scores and results can be deleted at any time following eighteen (18) months after the Effective Date without notice to the Authorized User; (3) Real Colors is not liable for any scoring or reporting errors; (4) Real Colors may withhold access to the scores and results if Real Colors, in its reasonable commercial discretion, determines that an Authorized User has not adequately completed training or for any other reason authorizing a Service Suspension or termination of this Agreement.
8. Intellectual Property Ownership; Feedback.
We own all right, title, and interest, including all intellectual property rights, in and to the Personality Instrument. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Personality Instrument, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
9. Limited Warranty and Warranty Disclaimer.
(a) Real Colors warrants that it provides Personality Instrument using a commercially reasonable level of care and skill.
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION REF a578362 \h \w9(a), THE PERSONALITY INSTRUMENT IS PROVIDED “AS IS” AND REAL COLORS SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. REAL COLORS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. REAL COLORS MAKES NO WARRANTY OF ANY KIND THAT THE PERSONALITY INSTRUMENT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10. Limitations of Liability.
IN NO EVENT WILL REAL COLORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER REAL COLORS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL REAL COLORS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO REAL COLORS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination.
(a) Term. This Agreement automatically terminates eighteen (18) months after the Effective Date. However, Real Colors reserves the right to retain Customer Data and continue to provide Authorized Users with access to their Customer Data after that date.
(b) Termination. In addition to any other express termination right set forth in this Agreement, either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
(c) Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Real Colors IP unless authorized by Real Colors. No expiration or termination of this Agreement will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. This Section 11(d), and Sections 2(e), 2(f), REF a165355 \h \n5, REF a767985 \h \n6, REF a000090 \h \n10, 11(a) and 11(c), 13, REF a000066 \h \n14, REF a000116 \h \n15, and 16, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
You acknowledge and agree that we have the right, in our sole discretion, to modify the terms governing your use of the Personality Instrument and Documentation Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications or posts on realcolors.com. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Personality Instrument and Documentation after the effective date of the modifications will be deemed acceptance of the modified terms.
13. Export Regulation.
The Personality Instrument utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Personality Instrument or the software or technology included in the Personality Instrument to, or make the Personality Instrument or the software or technology included in the Personality Instrument accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Personality Instrument or the software or technology included in the Personality Instrument available outside the US.
14. US Government Rights.
Each of the software components that constitute the Personality Instrument and the Documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Personality Instrument and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
15. Governing Law and Jurisdiction.
This agreement is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona. Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in the city of Phoenix and County of Maricopa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address available at realcolors.org and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Personality Instrument. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.