HOT ROCKS CONSULTING
Terms of Service
(last updated: AUGUST 6, 2018)
These Terms of Service (“Terms”) constitute a binding agreement between you (“you” or “your”) and Hot Rocks Consulting LLC (“HRC”) with respect to your access to and use of the HRC software (“Software”) made accessible to you by HRC on or through www.peerassessment.com (“Site”) on a software-as-a-services basis. These Terms also apply to the services HRC may choose to make available to you on or through the Site (“Services”). Registration data and other personally identifiable information that the Site, Software or Services may collect about you is subject to, and treated in accordance with, the terms of HRC’s Privacy Policy available on the Site (“Privacy Policy”) which is incorporated into and forms part of these Terms by this reference. By accessing and using the Site, Software or Services you agree to the terms and conditions set forth in these Terms. If you do not agree with any of the terms or conditions set forth in these Terms you may not access or use the Site, Software or Services for any purpose and should not check or click the “AGREE” box during your registration on the Site required for you to access and use the Site, Software and Services (“Registration”).
1. CHANGES TO TERMS
HRC may revise, update or otherwise change these Terms from time-to-time in HRC’s sole discretion. The date these Terms were last updated by HRC is set forth at the top of these Terms. All revisions, updates and other changes to these Terms are effective immediately and apply to all of your access to and use of the Site, Software and Services thereafter. Your continued use of the Site, Software or Services following the posting of revised, updated or otherwise changed Terms indicates and means that you accept and agree to the revised, updated or otherwise changed Terms.
2. SCOPE OF AND RESTRICTIONS ON ACCESS AND USE
Subject to your compliance with all of the terms and conditions of these Terms and your payment of the applicable fees, you may access and use the Site, Software and Services strictly for your internal team assessment purposes subject to the additional restrictions on the scope of such access and use as provided for in the terms of your Registration. You agree not to: (i) modify or delete any copyright, trademark or any other proprietary rights notices that appear in or on the Site, Software or Services; (ii) access or use the Site, Software or Services for any unlawful purposes or otherwise beyond the scope of the rights expressly granted to you in these Terms; (iii) cause or permit the copying, reverse engineering, disassembly or decompilation of the Site, Software or Services (except to the extent necessary to achieve interoperability of the Software with an independently created program and provided such activities are expressly permitted by applicable law for achieving such interoperability purposes); (iv) use or permit the use of the Site, Software or Services for any commercial time-sharing, rental or service bureau use, or consulting activities; or (v) modify or create derivative works of or based on the Site, Software or Services.
3. OWNERSHIP
The Site, Software and Services are owned by HRC or its licensors and are protected under copyright, trademark and other applicable United States and international laws and treaties. Without limiting the foregoing, the trademarks, trade names, service marks and logos displayed in or on the Site, Software or Services are registered and unregistered trademarks of HRC or its licensors. You acknowledge and agree that HRC or its licensors are and shall remain the sole owners of the Site, Software and Services, including without limitation all patents, copyrights, trademarks, trade secrets and other intellectual property and proprietary rights therein and thereto.
4. ACCOUNT REGISTRATION AND SECURITY
Access to and use of the Site, Software and Services requires you to register for an account with HRC using the HRC Registration. You agree to provide true, accurate, current, and complete information about you as prompted by the applicable Registration form, and you are responsible for keeping such information up to date with HRC. You are responsible and liable for any and all activities conducted through or using your Registration account, regardless of who conducts those activities. You are responsible and liable for maintaining the confidentiality of your Registration account information, including your username and password. You agree that you shall immediately notify HRC in writing of any unauthorized access to or use of the Site, Software, Services or your Registration account or of any other breach of security affecting the Site, Software, Services or your Registration account. HRC shall not be responsible or liable for any losses or damages arising from your failure to protect your username or password or any other information associated with your Registration account.
5. PAYMENT; NO REFUND
You agree to pay to HRC all applicable fees charged to you by HRC for your access to and use of the Site, Software and Services. All fees charged by HRC to you are due from you to HRC upon your receipt of each invoice from HRC and are payable in full by you to HRC within thirty (30) days of your receipt of each such invoice. For any overdue payments hereunder late fees will be charged to you and shall accrue at the lesser of (i) 1.5% per month; or (ii) the maximum rate allowed under applicable law. All fees hereunder are in U.S. dollars and do not include any taxes or levies thereon. If HRC is required to collect or pay any sales, use, GST, value-added, or similar taxes or levies, such taxes (other than taxes based on HRC’s net income) and levies shall be billed to and paid by you. All purchases hereunder are final and HRC is under no obligation to make or issue any refund or credit of any fees or amounts paid by you to HRC in connection with the Site, Software, Services, these Terms or your Registration.
6. INDEMNIFICATION
You shall indemnify, defend, and hold harmless HRC, its affiliates, subsidiaries, licensors, partners, and service providers, and the officers, directors, employees, agents, and representatives of each of them (collectively, “HRC Entities”) from and against any and all claims, demands, actions, proceedings, liabilities, losses, damages, judgments, awards, costs, and expenses (including attorneys’ fees) arising out of or resulting from your access to or use of the Site, Software or Services, your Registration account or your breach or violation of these Terms or applicable law. HRC reserves the right to assume the exclusive defense and control of any action or proceeding subject to this indemnification by you, and in such event you agree to cooperate with HRC in such action or proceeding. You agree not to settle or compromise any such action or proceeding without the express prior written consent of HRC.
7. WARRANTY DISCLAIMERS
THE SITE, SOFTWARE AND SERVICES ARE MADE ACCESSIBLE OR AVAILABLE TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER, AND THE HRC ENTITIES HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER IN CONNECTION WITH THE SITE, SOFTWARE, SERVICES AND THESE TERMS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES OR GUARANTEES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE HRC ENTITIES DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, PERFORMANCE, ACCESSIBILITY OR AVAILABILITY OF THE SITE, SOFTWARE OR SERVICES, NOR DO THE HRC ENTITIES MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER THAT ANY DEFECTS, ERRORS OR MALFUNCTIONS IN OR CONNECTED WITH THE SITE, SOFTWARE OR SERVICES WILL BE CORRECTED, THAT THE SITE, SOFTWARE OR SERVICES, OR THE SERVERS, COMPUTERS OR SERVICES THAT MAKES ANY OF THEM ACCESSIBLE OR AVAILABLE, ARE OR WILL BE FREE OF ANY VIRUSES, TRAPS OR OTHER HARMFUL CODE OR COMPONENTS, OR THAT THE SITE, SOFTWARE OR SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. ACCORDINGLY, THE HRC ENTITIES SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES OR LOSSES THAT MIGHT ARISE FROM OR ARE IN CONNECTION WITH THE SITE, SOFTWARE OR SERVICES, FOR EXAMPLE FROM THE SITE, SOFTWARE OR SERVICES INOPERABILITY, INACCESSIBILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY OR RELIABILITY OF THE SITE, SOFTWARE OR SERVICES, OR ANY INFORMATION FOUND ON, USED ON, OR MADE ACCESSIBLE OR AVAILABLE ON OR THROUGH THE SITE, SOFTWARE OR SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE EXCLUSIONS OR LIMITATIONS IN THIS SECTION 7 MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH THE SITE, SOFTWARE OR SERVICES FOR ANY REASON WHATSOEVER, YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IS TO TERMINATE YOUR REGISTRATION ACCOUNT WITH HRC AND TO DISCONTINUE ALL YOUR ACCESS TO AND USE OF THE SITE, SOFTWARE AND SERVICES.
8. LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE HRC ENTITIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES WHATSOEVER ARISING FROM OR RELATED TO THE SITE, SOFTWARE OR SERVICES, YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SITE, SOFTWARE OR SERVICES, OR OTHERWISE ARISING FROM OR RELATED TO THESE TERMS, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE OR ANY OF THE HRC ENTITIES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THE HRC ENTITIES’ MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES OR LOSSES THAT YOU SUFFER ARISING FROM OR IN RELATION TO THE SITE, SOFTWARE, SERVICES OR THESE TERMS IS LIMITED TO DIRECT DAMAGES ONLY WHICH SHALL NOT IN ANY EVENT EXCEED THE FEES PAID BY YOU TO HRC UNDER THESE TERMS FOR YOUR ACCESS TO AND USE OF THE SITE, SOFTWARE OR SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CONSEQUENTIAL DAMAGES, SO SOME OF THE EXCLUSIONS OR LIMITATIONS OF LIABILITY IN THIS SECTION 8 MAY NOT APPLY TO YOU. HRC AND YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 8 FAIRLY ALLOCATES THE RISKS UNDER THESE TERMS BETWEEN HRC AND YOU, AND THAT HRC’S FEES IN CONNECTION WITH THE SITE, SOFTWARE AND SERVICES REFLECT THIS ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN.
9. RESERVATION OF RIGHTS
HRC or its licensors reserve any and all rights, including but not limited to any and all copyrights, trademarks, patents, trade secrets, and any and all other intellectual and proprietary rights, in and to the Site, Software and Services, and all information and content that may be provided in, on or through the Site, Software or Services. By making the Site, Software or Services accessible or available to you under these Terms, HRC and its licensors are not granting you any implied or express rights or licenses of any kind whatsoever, other than those access and use rights expressly set forth in these Terms and you will have no rights or licenses to make any other access or use of the Site, Software or Services without HRC’s express prior written consent. HRC and its licensors reserve all rights not expressly granted.
10. CHANGES; SUSPENSION AND TERMINATION
10.1 Changes to Site, Software or Services. HRC reserves the right to make changes to, suspend, or discontinue (temporarily or permanently) the Site, Software or Services or any portion thereof at any time in its sole discretion. You agree that HRC shall not be responsible or liable to you or to any third party for any such changes, suspension, or discontinuance.
10.2 Suspension or Termination of Access. HRC has the right to deny access to, and to suspend or terminate your access to or use of, the Site, Software or Services, or to any features or portions thereof, at any time and for any reason, including if you breach or violate these Terms or your Registration.
10.3 Termination of Terms. These Terms shall be effective commencing upon your access to or use of the Site, Software or Services, and shall remain in effect until these Terms are terminated as provided for in these Terms or in the terms of your Registration. HRC may terminate these Terms and your Registration upon written notice of such termination to you if you are in breach or violation of any of the terms or conditions of these Terms or the terms of your Registration. Upon any termination of these Terms or your Registration, all rights granted to you under these Terms and your Registration shall immediately terminate, including your access to and use of the Site, Software and Services. Sections 3, and 5 through 11 inclusive, of these Terms shall survive any termination of these Terms or your Registration.
11. MISCELLANEOUS
11.1 Applicable Law, Jurisdiction and Venue. These Terms, your Registration and any dispute arising out of or related to these Terms, your Registration, your access to or use of the Site, Software or Services, or any information or content available on, in or through the Site, Software or Services, shall be governed by and construed in accordance with the laws of the State of Idaho, and applicable federal law of the United States, without regard to any conflict of law rules or principles. Any action or proceeding arising out of or related to these Terms, your Registration, the Site, Software, Services, or any information or content available on, in or through the Site, Software or Services, shall be instituted exclusively in the state or federal courts located in Ada County, Idaho, and you agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts, including any objection that any such action or proceeding has been brought in an inconvenient forum.
11.2 Geographic Restrictions. HRC is based in the State of Idaho in the United States. HRC makes no claims that the Site, Software, Services, or any information or content available on, in or through the Site, Software or Services, are accessible, available or appropriate outside of the United States. Access to or use of the Site, Software or Services may not be legal by certain entities or persons or in certain countries or jurisdictions. If you access or use the Site, Software or Services from outside the United States, you do so on your own initiative and are solely responsible and liable for compliance with any and all applicable foreign laws.
11.3 Export Administration. You agree that the Site, Software and Services may be subject to restrictions and controls imposed by the United States Export Administration Act (as amended from time-to-time), and you agree to comply with any and all applicable export control laws and regulations issued from time-to-time by the United States Department of Commerce (“DOC”) and similar agencies. You represent and warrant that the Site, Software and Services will not be transferred or re-exported, directly, or indirectly, into any prohibited country or for any prohibited purpose without further compliance with the validated license requirements of the DOC and of other applicable United States government agencies.
11.4 U.S. Government Users. If you are a unit or agency of the United States government, or if rights hereunder are acquired pursuant to a contract with any such unit or agency, you agree that the Site, Software and Services are provided with Restricted Rights, and any use, duplication, or disclosure is subject to the restrictions as set forth in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 subparagraph (c)(1)(ii), or the Commercial Computer Software — Restricted Rights at CFR 52.227-19, subparagraphs (c)(1) and (2), as applicable. Manufacturer is HRC, 3100 Crescent Rim Drive, #401, Boise Idaho 83706.
11.5 Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO YOUR ACCESS TO OR USE OF THE SITE, SOFTWARE, SERVICES, OR ANY INFORMATION OR CONTENT AVAILABLE ON, IN OR THROUGH THE SITE, SOFTWARE OR SERVICES, OR THESE TERMS, MUST BE COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION OR CLAIM, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
11.6 Waiver of Jury Trial. YOU HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATED TO YOUR ACCESS TO OR USE OF THE SITE, SOFTWARE, SERVICES, OR ANY INFORMATION OR CONTENT AVAILABLE ON, IN OR THROUGH THE SITE, SOFTWARE OR SERVICES, OR THESE TERMS.
11.7 Waiver and Severability. HRC’s failure to exercise or enforce any right or provision of these Terms or your Registration will not constitute a waiver of such right or provision. If any provision of these Terms or your Registration is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of these Terms and your Registration will continue in full force and effect.
11.8 Headings. The headings in these Terms are for convenience of reference only and shall not be used to construe or interpret the provisions of these Terms.
11.9 Force Majeure. Non-performance of these Terms or your Registration by HRC shall be excused to the extent that performance is beyond the reasonable control of and not caused by the negligence of HRC.
11.10 Independent Contractors. Under these Terms, the relationship between HRC and you is that of independent contractors, and not one of principal and agent, joint venture, franchise or partnership.
11.11 Assignment. These Terms and your Registration, and your rights and obligations under these Terms and your Registration, are not transferable or assignable by you to any third party without the express prior written consent of HRC and any attempt by you to so transfer or assign these Terms or your Registration, or any of your rights or obligations under these Terms or your Registration, without such consent shall be null and void.
11.12 Entire Agreement. These Terms, including your Registration and the Privacy Policy, constitute the entire and exclusive understanding and agreement between HRC and you with respect to the subject matter hereof, and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, between HRC and you regarding such subject matter. No terms or conditions contained on or in any purchase order or any other business document unilaterally issued by you to HRC will apply to or have any effect on these Terms, including your Registration and the Privacy Policy.
Questions. If you have any questions about the Site, Software, Services, these Terms or your Registration, please contact HRC through our contact form.