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Access License Agreement
1. Introduction and Acceptance. This Access License Agreement (the “Agreement”) is a legal agreement between either an individual or an entity (“Customer”) and ARESS Software and Education Technologies Private Limited, (“ARESS”) setting forth the terms and conditions under which ARESS will grant Customer the right to access and use certain ARESS software described in the accompanying or online documentation (“Software”). BEFORE CUSTOMER AGREES TO THE TERMS AND CONDITIONS, CAREFULLY READ THIS AGREEMENT. IF CUSTOMER IS A CORPORATION, PARTNERSHIP LIMITED LIABILITY COMPANY OR OTHER ENTITY (“ENTITY”), THEN THE PERSON SIGNING THIS AGREEMENT ON THE ENTITY’S BEHALF REPRESENTS THAT HE OR SHE IS AUTHORIZED TO SIGN FOR AND BIND THE ENTITY. IF HE OR SHE IS NOT AUTHORIZED TO SIGN FOR AND BIND THE ENTITY, THEN DO NOT AGREE TO THE TERMS AND CONDITIONS AND DO NOT ACCESS OR USE THE SOFTWARE. BY CLICKING “I ACCEPT” BELOW, CUSTOMER IS SIGNING THIS AGREEMENT, AND IS AGREEING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT.
2. Software. Subject to the restrictions set forth below, ARESS grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable right to download the Software for installation in Customer’s salesforce.com instance (“SFDC Instance”) for use by Customer in connection with the SFDC Instance for Customer internal business purposes.
3. Software Availability. Customer acknowledges that access to and use of the Software is dependent on the availability and proper functioning of the SFDC Instance and that ARESS has no control over the SFDC Instance or the salesforce.com service. ARESS disclaims responsibility and liability for any inability to access or use the Software, or degradation of the performance of the Software, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to the SFDC Instance or other third party owned or controlled technology. Customer is solely responsible for the configuration of the SDFC Instance and all technology and services necessary to access and use the Internet and the SFDC Instance.
4.1 The rights granted hereunder do not constitute a transfer or sale of ARESS's or its licensors’ ownership rights in or to the Software, including, without limitation: (a) the Software and the applicable documentation; (b) ARESS name, logo, domain name, ARESS product names and other trademarks; and (c) hardware, processes, algorithms, user interfaces, know-how and other trade secrets or technology (collectively, “ARESS Technology”). The ARESS Technology is protected by applicable intellectual property laws, including, but without limitation, copyright laws and international treaties. Except for the rights granted above, ARESS and its licensors retain all right, title and interest in and to ARESS Technology, including all intellectual property rights therein.
4.2 As between ARESS and Customer, Customer owns the information in the SFDC Instance and ARESS makes no claim of ownership to any information in the SFDC Instance. Customer acknowledges and agrees that the Software will access and use Customer information from the SFDC instance, but solely to the extent necessary for the Software to perform as intended. This access and use does not permit the Software, or ARESS, to access or use such Customer information outside of the SFDC instance or for any other purpose, except as expressly permitted in writing by Customer. Customer is solely responsibility for the accuracy of all information in the SFDC Instance.
5. Restrictions; Responsibilities.
5.1 CUSTOMER MAY NOT (AND MAY NOT ALLOW A THIRD PARTY TO) RENT, LEASE, SUBLICENSE, SELL, CHARGE, ASSIGN, LOAN, USE FOR TIMESHARING OR SERVICE BUREAU PURPOSES OR OTHERWISE TRANSFER THE SOFTWARE OR ANY OF CUSTOMER’S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT. Customer may not (and may not allow a third party to): (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Software by any means whatsoever, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; (c) attempt to circumvent any use restrictions or gain unauthorized access to the Software, computer systems or networks related to the Software; (d) modify or create derivative works based on the Software; (e) copy or distribute the Software; (f) allow use of the Software by anyone other than user(s) authorized and paid for by Customer; (g) knowingly transmit through the Software unlawful, libelous, tortious, defamatory, threatening, vulgar, or obscene material or material containing viruses or other harmful code; or (h) otherwise use the Software other than as permitted in Section 2. Customer acknowledges that ARESS may utilize technological license control features that can limit Customer access to or use of Software to ensure Customer compliance with this Agreement.
5.2 Customer is responsible for all activity occurring under Customer’s user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer use of the Software, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, and will notify ARESS promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to ARESS immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of content that is known or suspected by Customer or Customer’s users; and (iii) not impersonate another ARESS user or provide false identity information to gain access to or use the Software. Customer will not attempt to or use access to the Software to knowingly interfere with or disrupt the integrity or performance of the Software or the data contained therein.
6. Confidentiality. “Confidential Information” means information disclosed by either party to the other, whether orally, electronically or in writing, which is designated as confidential or would reasonably be considered to be confidential under the circumstances by a reasonable person. ARESS's Confidential Information shall include, but not be limited to, Software, documentation, technology and technical information, product designs and business processes. Each party agrees to use Confidential Information solely to perform obligations and exercise rights under this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party without the other’s prior written consent. Each party shall safeguard the Confidential Information of the other party using the same measures it uses to protect its own confidential information, but in no event less than reasonable care. Notwithstanding the foregoing, neither party bears responsibility for safeguarding information that is publicly available without breach of an obligation owed to the disclosing party hereunder, obtained from third parties not under confidentiality restrictions, independently developed or known to the recipient without breach of an obligation owed to the disclosing party, or required to be disclosed by order of court or other governmental entity. If either party breaches, or threatens to breach the provisions of this Section 10, each party agrees that the non-breaching party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief.
7. Customer Warranties. Customer shall be solely responsible for all activities in connection with the Software that occur under Customer’s username(s). Without limiting the generality of the foregoing, Customer shall: (i) comply with all applicable laws and regulations; and (ii) be solely responsible for the accuracy, reliability, and quality of any information or data submitted by Customer to ARESS or processed using the Software. Customer warrants that any data, content, or materials used, stored or created by Customer using the Software will not infringe the copyright, trade secret, patent, privacy, publicity, or other proprietary or intellectual property right of any third party.
8. Breach of Customer Warranties. In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties or obligations, or Customer infringes or misappropriates ARESS's intellectual property rights, in addition to any other remedies available at law or in equity, ARESS will have the right to immediately, in ARESS's sole discretion, suspend Customer’s access to or use of the Software and/or terminate this Agreement, if deemed reasonably necessary by ARESS to prevent any harm to ARESS or its business.
9.1 Customer shall indemnify and hold ARESS and its subsidiaries, affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorneys’ fees and costs), arising out of a claim or demand alleging that any data or content submitted by Customer to ARESS infringes, misappropriates, or violates any rights of a third party including any third party intellectual property rights.
9.2. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR SELECTION OF THE SOFTWARE TO ACHIEVE ITS INTENDED RESULTS AND FOR THE USE OF AND RESULTS OBTAINED FROM THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARESS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE. ARESS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, OR ERROR-FREE.
10. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL ARESS, ITS LICENSORS, OR SALESFORCE.COM BE LIABLE FOR LOSS OF PROFITS, BUSINESS OR DATA (EVEN IF THE SAME WERE JUDGED BY A COURT TO BE DIRECT LOSSES) OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER SUCH PECUNIARY LOSS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ARESS’S OBLIGATIONS UNDER SECTION 13.2, IN NO EVENT SHALL ARESS, ITS LICENSORS’ OR SALESFORCE.COM’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SOFTWARE FOR THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THEIR ESSENTIAL PURPOSE. THE ABOVE WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY AND DAMAGES INURE TO THE BENEFIT OF ARESS’S LICENSORS AND SALESFORCE.COM.
11. General. This Agreement shall be governed by Maharashtra law without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts located in Nasik, Maharashtra India.