End User License Agreement

Benchmark Analytics^® Software as a Service – End User License Agreement

Updated: June 28, 2023

1. General:

Please read this End User License Agreement (this “Agreement”) carefully before installing or using any products or services of Benchmark Analytics LLC (“Benchmark”), including the “Benchmark Analytics” software application (collectively, the “Services”). The Services may be provided to you (“End User”) from Benchmark or a third party authorized by Benchmark to provide the Services (the “Third Party Provider”). By installing or otherwise using the Services, End User represents and warrants that End User has the authority to bind End User and End User’s organization (as applicable) and that End User (and any authorized users within End User’s organization) are hereby bound by this Agreement. If an End User has a separate written agreement with Benchmark covering the Services (“Written Agreement”), this Agreement shall not supersede such Written Agreement and the terms and conditions thereof shall still apply to such End User. In the event of any conflict between this Agreement and such Written Agreement, the terms and conditions of the Written Agreement shall apply to such End User.

2. License Grant:

Subject to and conditioned on End User’s compliance with the terms and conditions of this Agreement, Benchmark hereby grants End User a non-exclusive, non-transferable right to access and use the Services made available to End User by the Third Party Provider, during the Term, solely for use by End User’s administrators, employees and other End-User-authorized persons or entities (“Authorized Users”) in accordance with the terms and conditions herein and any additional terms applicable to Authorized Users. Such use is limited to End User’s internal use. Benchmark (or the Third Party Provider) shall provide to End User the necessary passwords, security codes and network links or connections to allow End User to access the Services (“Access Credentials”).

3. Restrictions on Use:

1. End User may only use the Services strictly in accordance with (1) all applicable laws, including without limitation, employment laws and data privacy and security laws, (2) the supporting materials (“User Materials”) provided by Benchmark, and (3) any other restrictions and requirements set forth herein. End User agrees that while the Services and the reports generated through End User’s use of the Services (“Reports”) may be used by End User or the Third Party Provider in employment, insurance or other business-related matters, they are not designed to be, nor shall they be, utilized as the substantial or sole factor in any employment, insurance or other business-related decisions and are only designed to provide information to End User and/or the Third Party Provider. Benchmark shall not be responsible for End User’s or its employees’ (or the Third Party Provider’s) use of the Services or any Reports generated by the Service. All employment, insurance or other business-related decisions of End User and/or Third Party Provider, including without limitation the termination or discipline of any employee of End User or the approval or rejection of insurance coverage, and End User’s and the Third Party Provider’s use of the Services, is at the sole discretion and responsibility of End User and the Third Party Provider, and Benchmark shall have no responsibility whatsoever for any such decisions. In no event shall Benchmark be required to monitor or supervise the use of the Services by End User or the Third Party Provider or any authorized users and compliance with the terms of this Agreement by all authorized users shall at all times be and remain End User’s and the Third Party Provider’s sole responsibility.
2. End User shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. End User shall not at any time, directly or indirectly, permit any Authorized Users or any third-party to: (i) copy, modify, or create derivative works of the Services or User Materials, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or User Materials; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or User Materials, misappropriates, or otherwise violates any intellectual property (IP) right or other right of any person, or that violates any applicable law; or (vi) use the Services or User Materials for the purpose of creating any competing or similar service or software.

4. Intellectual Property:

1. Benchmark acknowledges that, as between Benchmark and End User, End User owns all right, title, and interest, including all intellectual property rights, in and to information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of End User or an Authorized User through the Services (“End User Data”). End User hereby grants to Benchmark (i) a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the End User Data and perform all acts with respect to the End User Data as may be necessary for Benchmark to provide the Services to End User or the Third Party Provider; and (ii) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use, prepare derivative works from, and display End User Data (a) to evaluate, enhance and improve the Services and future products and services (subject to the confidentiality obligations in Section 8); (b) for Research Purposes; and (c) to the extent incorporated within the Aggregated Statistics. “Research Purposes” means the use of End User Data for research, educational or evaluative purposes including purposes of identifying best practices and improving outcomes as related to public safety and law enforcement; provided that if such End User Data is disclosed to a third-party, it shall not directly identify any individual or agency and shall comply with applicable confidentiality obligations and shall be subject to the provisions of Section 5(b) below.
2. End User acknowledges that, as between End User and Benchmark, Benchmark and its licensors own all right, title, and interest, including all intellectual property rights, in and to the Services, all underlying software for the Services, the User Materials, and any and all intellectual property provided to End User or any Authorized User in connection with the foregoing, including, without limitation, Aggregated Statistics and any information, data, or other content derived from Benchmark’s monitoring of End User’s access to or use of the Services (“Benchmark IP”). For the avoidance of doubt, Benchmark IP excludes End User Data.

5. Aggregated Statistics:

1. Notwithstanding anything to the contrary in this Agreement, Benchmark may monitor End User’s use of the Services and collect and compile data and information related to End User’s use of the Services that is used by Benchmark in an aggregate and anonymized manner, including, but not limited to, compilation of statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Benchmark and End User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Benchmark. End User acknowledges that Benchmark may compile Aggregated Statistics based on End User Data input into the Services; provided, that such Aggregated Statistics do not identify End User, any Authorized Users, or End User’s Confidential Information.
2. End User acknowledges that Benchmark engages with various research and academic institutions (“Research Institutions”) both through its work with the National Police Early Intervention and Outcomes Consortium (the “Consortium”) and otherwise, for Research Purposes.  Notwithstanding anything to the contrary in this Agreement, End User hereby acknowledges and consents to Benchmark’s sharing of anonymized End User Data with Research Institutions and/or the Consortium; provided that such shared End User Data shall (i) be anonymized, (ii) not identify End User or End User’s Confidential Information, and; provided, further, that any recipient Research Institution and/or the Consortium shall be subject to confidentiality requirements.  End User shall not hold Benchmark liable under, or in connection with, any of the activities described in Section 4 or this Section 5 under any legal or equitable theory for damages related to or arising from this Agreement.

6. Support Services:

Benchmark shall provide a customer support number for End User. The customer support line may be accessed through a toll-free telephone number (1-888-40-BENCH) or via e-mail ([email protected]) and will be available Monday through Friday 8:00AM – 6:00PM (CST), excluding all federal holidays. In the event of a system wide outage, End User shall be provided with a 24-hour hotline for immediate response.

7. End User Obligations:

1. End User is responsible and liable for all uses of the Services and User Materials resulting from access provided by or through End User, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, End User is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by End User will be deemed a breach of this Agreement by End User. End User shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with all such provisions.
2. End User understands and agrees that (i) End User is responsible for obtaining and installing all software and/or hardware upgrade, fixes, or enhancements required by the applicable browser software; and (ii) that Benchmark is not responsible for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited, to the Internet.
3. End User shall be responsible for: (i) securely administering the distribution and use of all Access Credentials and protection against any unauthorized access to or use of the Services; and (ii) controlling the content and use of End User Data, including the uploading or other provision of End User Data to or through the Services and the accuracy thereof. End User shall immediately notify Benchmark if End User becomes aware of any loss or theft or unauthorized use of any Access Credentials.
4. End User shall immediately notify Benchmark if it becomes aware that the Services, or End User’s use of the Services, violates or potentially violates any applicable laws.
5. End User is solely responsible for maintaining the confidentiality of End User’s user name(s) and password(s).
6. End User is responsible to ensure that its use of the Service will not introduce, install or inject any malware (e.g., virus, timer, clock, counter, time lock, time bomb, Trojan horse, worm, file infector, boot sector infector, or other limiting design, instruction, or routine) into Benchmark’s network, hardware or software.  End User will immediately notify Benchmark, and in any event within three (3) days, after it becomes aware of a breach of this Section 7(f) and in such event (or upon any independent discovery by Benchmark of malware originating from End User), Benchmark may restrict or deny access to the Services pending resolution of the malware threat.

8. Confidentiality:

“Confidential Information” means any information that includes the following: (a) for Benchmark, all information relating to its business affairs, products, technology (including, but not limited to, source code, research and/or analytics), confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information; and (b) for End User, the identities of its Authorized Users, records of interactions with the Authorized Users, and End User Data (including, but not limited to, information regarding End User’s employees). Neither party shall disclose any Confidential Information of the other party to any person or entity, except to those of its employees or contractors who require access to it in order for the party to be able to perform its obligations under this Agreement, and who are bound by confidentiality obligations consistent with the terms of this Section, and except to the extent otherwise permitted by the licenses granted in Sections 5.  The receiving party shall be responsible and liable for compliance with this Section by its employees and contractors. “Confidential Information” does not include any information that (i) becomes generally publicly available other than as a result of improper disclosure by the receiving party; (ii) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; (iii) becomes available on a non-confidential basis from a third-party that is not bound by confidentiality; or (iv) is known to the receiving party at the time of disclosure. To the extent required by any applicable law, regulation, or order of any court or governmental body, disclosure of Confidential Information is not a breach of this Agreement; provided, that the party required to disclose it (a) promptly, and prior to such disclosure, notifies the other party so that it can seek a protective order or other remedy, and (b) prior to any disclosure, asserts the confidential nature of the Confidential Information

9. Indemnification:

Benchmark shall indemnify, defend, and hold harmless End User from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by End User resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third-party’s valid U.S. patent or copyright, provided that End User promptly notifies Benchmark in writing of the claim, cooperates with Benchmark, and allows Benchmark sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, End User agrees to permit Benchmark, at Benchmark’s sole discretion, to (a) modify or replace the Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for End User to continue use. This Section will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, or technology not provided by Benchmark or authorized by Benchmark in writing; (ii) modifications to the Services not made by Benchmark; (iii) failure to timely implement any modifications, upgrades, replacements or enhancements made available to End User by or on behalf of Benchmark; or (iv) End User Data or any other End User materials. THIS SECTION SETS FORTH END USER’S SOLE REMEDIES AND BENCHMARK’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY.

10. Disclaimer of Warranties:

THE SERVICES AND BENCHMARK IP ARE PROVIDED “AS IS” AND BENCHMARK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BENCHMARK 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. BENCHMARK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES AND BENCHMARK IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET END USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

11. Limitation of Liability:

IN NO EVENT WILL BENCHMARK BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) DAMAGES OF ANY NATURE WHATSOEVER IN CONNECTION WITH, RELATED TO OR ARISING OUT OF ANY TERMINATION OR DISCIPLINE OF AN END USER EMPLOYEE, OR ANY END USER EMPLOYMENT, INSURANCE OR OTHER BUSINESS-RELATED MATTER, (c) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (d) LOSS OF GOODWILL OR REPUTATION; (e) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY END USER DATA, OR BREACH OF END USER DATA OR SYSTEM SECURITY; OR (f) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BENCHMARK WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BENCHMARK’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED $250,000.

12. Time to File Claims:

No action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two (2) years after the cause of action was discovered or should have been discovered.

13. Termination:

In addition to any other express termination right set forth in this Agreement, this Agreement may be terminated by Benchmark immediately (a) if End User’s access or use of the Services is terminated by the Third Party Provider, or (b) if End User (or any Authorized User) is in material breach of any provision of this Agreement. Upon termination of this Agreement, (i) End User shall immediately discontinue use of the Benchmark IP and, without limiting End User’s obligations under Section 8, End User shall delete, destroy, or return all copies of the Benchmark IP; and (ii) Benchmark may immediately deactivate End User’s account, and, after providing End User with ninety (90) days limited access to the Services for the sole purpose of permitting End User to retrieve End User Data, delete End User’s account and bar any further access to such information and the Services. End User understands and agrees that Benchmark is not liable to End User, its Authorized Users, or any third-party for any termination of End User’s access to the Services or deletion of End User Data or any other data of any kind. Sections 3, 4, 5, 8, 9, 10, 11,12, 13 and 15 through 21 will survive any termination or expiration of this Agreement.

14. Publicity:

End User grants to Benchmark the right to publicly disclose the fact that End User is using the Services of Benchmark.

15. Severability:

Each paragraph and provision of this Agreement is severable from the entire Agreement, and, if one provision is declared invalid, the remaining provisions shall remain in effect and the invalid provision shall be reformed and amended to the extent needed to be valid.

16. Force Majeure:

In no event shall Benchmark be liable to End User, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Benchmark’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

17. Entire Agreement; Amendment; Waiver:

This Agreement supersedes all prior agreements and understandings between End User and Benchmark (other than a Written Agreement), including any representations, expressed or implied. End User acknowledges that this Agreement may not be changed or terminated by End User orally. Benchmark reserves the right to update the terms of this Agreement from time to time, as noted by the “Last Updated” above. No other change, termination or attempted waiver of any of the provisions of this Agreement shall be binding unless in writing and signed by an authorized representative of the party against who the same is sought to be enforced. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

18. Notices:

Except as specifically stated, all notices and other communications required or permitted under this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery, registered mail (return receipt requested) or email at [email protected], and shall be deemed given upon personal delivery or upon confirmation of receipt.

19. Relationship of the Parties:

Benchmark and End User are independent contractors. Neither party shall make any contracts, warranties, representations, or assume or create any other obligations, whether express or implied, in the other party’s name or on its behalf.

20. Third-Party Beneficiaries:

This Agreement does not and is not intended to confer any rights or remedies upon any person or entities other than Benchmark and End User.

21. Assignment:

This Agreement, and End User’s rights and obligations hereunder, may not be assigned by End User without Benchmark’s prior written consent, and any attempted assignment in violation of the foregoing will be null and void. Benchmark may assign this Agreement and its rights hereunder at any time.