End User Terms of Service
These End User Terms of Service (these “Terms”) govern your access to and use of the cloud hosted software services, related functionality, dashboards, analytics, documentation, and support tools that MARS Performance Solutions, LLC (“MARS”) makes available to your employer or other organization that has entered into a Software as a Service Agreement with MARS authorizing your access to the Services (that organization, “Customer,” and that agreement, the “Customer Agreement”). These Terms apply to each individual employee, contractor, or other permitted personnel of Customer or its permitted affiliates whom Customer authorizes to access the Services under Customer’s subscription using unique login credentials assigned to that individual. By accepting these Terms, you represent that you are such an authorized individual and that you have the legal capacity to be bound by these Terms. By clicking to accept, accessing, or using the Services, you agree to be bound by these Terms; if you do not agree, you must not access or use the Services.
Relationship to the Customer Agreement
Your right to access and use the Services exists only because Customer entered into the Customer Agreement and authorized you to use the Services under Customer’s subscription. These Terms supplement the Customer Agreement and flow down to you the use restrictions, confidentiality obligations, security expectations, and other end user requirements that apply to Customer’s use of the Services. As between MARS and Customer, the Customer Agreement controls all commercial matters, including subscription scope, fees, support commitments, data processing obligations, and post termination data export and deletion. Nothing in these Terms gives you any ownership interest in the Services or any independent right to continue using the Services after Customer’s authorization or subscription ends.
Authorized Access and Account Security
Subject to your compliance with these Terms and Customer’s compliance with the Customer Agreement, MARS grants you during the applicable subscription period a limited, personal, non-exclusive, non-transferable, and non-sublicensable right to access and use the Services solely for Customer’s internal business purposes. The Services are licensed and made available as a hosted service, not sold, and no ownership rights in the Services are transferred to you. You may access the Services only through credentials uniquely assigned to you, and you may not share your credentials with any other person or allow simultaneous use of your account by multiple individuals. You must maintain the confidentiality of your credentials and promptly notify Customer and, where appropriate through the reporting channels provided for the Services, MARS of any known or reasonably suspected unauthorized access, credential compromise, or misuse of any account.
You acknowledge that Customer is responsible for your acts and omissions in connection with the Services, and you agree to comply with the Customer Agreement, the Documentation, and any applicable acceptable use policy or security requirements that MARS provides to Customer. MARS may update the Services from time to time to maintain, secure, improve, or enhance them, provided that MARS will not materially reduce the core functionality purchased by Customer during the applicable subscription period except where required for legal, regulatory, security, or safety reasons. Your continued use of the Services after any permitted update remains subject to these Terms, the then current Documentation, and the Customer Agreement.
Permitted Use and Prohibited Conduct
You may use the Services only for Customer’s internal business purposes and only in a manner consistent with applicable law, the Customer Agreement, the Documentation, and Customer’s internal policies and instructions. You may not reverse engineer, decompile, disassemble, copy, frame, mirror, scrape, benchmark, or otherwise attempt to derive the source code, structure, or underlying ideas of the Services except to the limited extent that applicable law prohibits contractual restriction. You may not use the Services to build or support a competing product or service, conduct competitive analysis, perform unauthorized security testing, bypass service limitations, introduce malicious code, resell the Services, provide the Services as a service bureau, or remove proprietary notices. You may not harvest, collect, or aggregate data or information regarding other MARS customers or their personnel, and you may not interfere with or disrupt the integrity, security, or performance of the Services or any data contained in them.
You may not permit any direct competitor of MARS to access the Services for competitive purposes without MARS’s prior written consent. You may not use the Services in a manner that violates applicable employment, labor, anti-discrimination, privacy, monitoring, data protection, export control, sanctions, anti-corruption, or other applicable laws. You agree that a breach of these use restrictions may cause irreparable harm to MARS for which monetary damages would be an inadequate remedy, and MARS may seek injunctive or other equitable relief for such a breach in addition to any other remedies available at law or in equity.
Customer Data, Privacy, and Sensitive Data
As between MARS and Customer, Customer retains all right, title, and interest in and to all data, content, materials, records, and information that Customer or its authorized users submit to, upload to, transmit through, or otherwise make available in connection with the Services, including performance reviews, goals, feedback, analytics inputs, reports, files, and related account or configuration data (“Customer Data”). You acknowledge and agree that any information you submit or make available through the Services in connection with your use on Customer’s behalf will be treated as Customer Data and may be accessed, used, exported, retained, or deleted by Customer and MARS as permitted under the Customer Agreement, the applicable Order Form, and applicable law. You represent and warrant that you have obtained all Customer Data you submit, upload, or otherwise make available through the Services lawfully and in compliance with applicable law and any applicable third-party rights, and that MARS’s receipt, storage, and processing of that Customer Data as contemplated by these Terms and the Customer Agreement will not violate any such law or rights. MARS may host, copy, transmit, display, process, adapt, and otherwise use Customer Data solely as necessary to provide, support, secure, maintain, and improve the Services for Customer and to perform MARS’s obligations and exercise MARS’s rights under the Customer Agreement. If MARS processes personal information on Customer’s behalf, that processing is governed by the data processing addendum incorporated into the Customer Agreement, under which Customer acts as the controller or business, as applicable, and MARS acts as the processor, service provider, or contractor, as applicable.
MARS’s collection, use, and disclosure of information in connection with the Services, including usage statistics, service telemetry, operational data, and aggregated or de-identified insights that do not identify Customer, any authorized user, or any natural person and are not used to attempt re-identification, are also subject to the Privacy Policy incorporated into the Customer Agreement. MARS owns all right, title, and interest in and to such platform data and any analyses, insights, or work product derived from it, provided that such data does not identify Customer or any natural person. Customer is responsible for providing any legally required notices to employees, applicants, contractors, or other individuals whose data or activity may be processed through the Services, including notices related to employee privacy and electronic monitoring, and Customer is also responsible for obtaining all rights, consents, authorizations, and other legal bases necessary for MARS to process personal information as contemplated by the Customer Agreement. If you have a question about privacy rights, workplace disclosures, employment monitoring, or Customer’s handling of Customer Data, direct it to Customer, which controls how it uses the Services and remains responsible for its employment related decisions and legal compliance.
The Services are not designed to process sensitive data such as Social Security numbers, financial account numbers, payment card data subject to the Payment Card Industry Data Security Standard, protected health information, driver’s license numbers, passport numbers, visa numbers, or biometric identifiers or biometric information. You must not upload, submit, or otherwise make available any such sensitive data through the Services. You are also prohibited from using the Services to store unrelated categories of highly regulated data that the Services were not designed to support. Any attempt to use the Services for prohibited sensitive data may result in immediate suspension or termination of your access and any other remedies available under these Terms or the Customer Agreement.
Employment Decisions and No Professional Advice
The Services are intended to help employer customers manage goals, key performance indicators, feedback, analytics, and related performance improvement workflows through a structured software environment. You acknowledge that MARS does not direct Customer’s employment practices and does not control or assume responsibility for Customer’s decisions regarding hiring, termination, promotion, discipline, compensation, work allocation, advancement, retention, or any other employment related action. Customer remains solely responsible for how it interprets, uses, or acts upon reports, analytics, recommendations, coaching prompts, scores, or other outputs generated or surfaced through the Services. Your use of the Services does not substitute for independent managerial judgment, human resources review, legal review, or any other professional advice.
MARS does not provide legal, human resources, or employment law advice through the Services. If you are a manager, reviewer, administrator, or other user with decision making authority, you must use independent judgment and any internal review processes required by Customer when relying on information generated by the Services. Nothing in these Terms authorizes you to make employment or compliance decisions in a manner inconsistent with Customer’s policies, applicable law, or any requirement for meaningful human review.
Intellectual Property and Feedback
As between MARS and Customer, MARS and its licensors own and retain all right, title, and interest in and to the Services, the Documentation, the software, models, know-how, configurations, interfaces, templates, and all improvements, modifications, enhancements, and derivative works of the foregoing, together with all intellectual property rights in them. Except for the limited access rights expressly granted under these Terms, no other rights, licenses, or interests in MARS’s intellectual property are granted or implied to you. You must not remove or obscure any proprietary notices appearing in or on the Services or the Documentation. Any unauthorized use of MARS’s intellectual property is prohibited and may result in immediate suspension or termination of your access and any other relief available to MARS.
If you provide MARS with suggestions, enhancement requests, recommendations, corrections, or other feedback concerning the Services, MARS will own all right, title, and interest in that feedback and may use and exploit it without restriction, accounting, or compensation to you, provided that MARS will not identify Customer as the source without Customer’s consent. For the avoidance of doubt, feedback does not include Customer Data to the extent information is submitted through the ordinary operation of the Services rather than as a voluntary suggestion or request for improvement. You agree to provide any further assistance reasonably requested by MARS to document, perfect, or confirm MARS’s ownership of such feedback.
Confidentiality and Security
In connection with your use of the Services, you may receive or gain access to non-public information belonging to MARS, Customer, or other persons that should reasonably be understood to be confidential under the circumstances, including Customer Data, pricing, security information, product roadmaps, technical information, business plans, and the terms governing the Services. You may use such confidential information only as necessary to perform your authorized role for Customer in connection with the Services. You must protect confidential information using at least reasonable care and not less than the care you use to protect your own confidential information of similar importance. You may not disclose confidential information except as permitted by Customer in the ordinary course of your authorized use, or as required by law after giving any notice required by applicable law or by Customer’s policies.
You acknowledge that MARS implements and maintains reasonable and appropriate technical and organizational measures designed to protect personal information against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or unauthorized access. You also acknowledge that no system is guaranteed to be uninterrupted or error free and that MARS may update its security measures from time to time so long as it does not materially diminish the overall security of the Services during the applicable subscription period. You must comply with all security procedures and account management requirements communicated by Customer or MARS for the Services. Unauthorized disclosure or misuse of confidential information may cause irreparable harm for which monetary damages may be inadequate, and MARS may seek appropriate equitable relief for actual or threatened breach of this section in addition to other available remedies.
Support, Beta Features, and Third-Party Services
During the applicable subscription period, MARS will provide the standard support services described in the applicable Order Form or support documentation to Customer, and any support available to you directly will be subject to Customer’s support level and administrative processes. MARS will use commercially reasonable efforts to provide support during its standard business hours, subject to planned maintenance, emergency maintenance, force majeure events, Customer caused issues, and third-party dependency failures. You acknowledge that MARS may suspend or limit access to beta, pilot, preview, early access, or other prerelease features at any time. Those features are provided on an as is basis without service levels or production support commitments unless MARS expressly agrees otherwise in writing.
The Services may include optional modules, beta functionality, and third-party integrations that are subject to additional usage rules or product specific terms. MARS is not responsible for the availability, performance, or accuracy of third-party services, integrations, or external content, even if MARS makes certain integrations available as a convenience. You are responsible for following Customer’s instructions regarding any connected third-party service and for ensuring that your use of any third-party integration remains within the scope authorized by Customer.
Suspension and Termination
Your access to the Services may be suspended or terminated by Customer at any time, and your access will automatically end when Customer’s applicable authorization for you ends. MARS may suspend your access if undisputed fees owed by Customer remain more than thirty days overdue after MARS has provided Customer the prior written notice required under the Customer Agreement, or immediately if MARS reasonably believes that your use of the Services poses a security risk, violates applicable law, materially disrupts the Services, or breaches a material usage restriction. MARS will use commercially reasonable efforts to tailor any suspension to the circumstances giving rise to it and to restore access promptly after the issue is resolved. Suspension does not waive or limit any other rights or remedies available to MARS or Customer.
Upon expiration or termination of Customer’s rights in the Services, or upon termination of your authorization, your right to access and use the Services will end immediately. Any data export rights, deletion schedules, or post termination transition services are matters between MARS and Customer under the Customer Agreement and do not create any separate right for you individually. MARS may retain copies of Customer Data or personal information to the extent required by law, for legitimate backup and archival purposes, to comply with legal hold obligations, or as necessary to establish, exercise, or defend legal claims or enforce its rights, and any retained information will remain subject to the applicable confidentiality and security obligations. The restrictions on use, confidentiality obligations, data rights, dispute resolution provisions, and other provisions that by their nature should survive will survive termination of these Terms.
Warranties, Disclaimers, and Remedies
MARS warrants to Customer, and not separately to you, that during the applicable subscription period the Services will materially conform to the Documentation, that MARS will use commercially reasonable efforts to maintain safeguards for Customer Data, and that the Services will not knowingly contain malicious code introduced by MARS. Your use of the Services is therefore subject to the benefit and limitations of the warranties provided in the Customer Agreement. Any exclusive remedy for breach of those limited warranties belongs to Customer under the Customer Agreement and may include correction of the nonconformity, a reasonable workaround, or termination of the affected Services and a refund of prepaid fees for the unused portion of the terminated subscription term if MARS cannot resolve the issue within a reasonable period. The limited warranty does not apply to issues caused by Customer Data, misuse of the Services, unauthorized modifications, third party services, beta features, unsupported configurations, or use of the Services contrary to the Documentation or the governing agreement.
Except for the express warranties stated in the Customer Agreement, the Services, the Documentation, beta features, professional services, and all related materials are provided on an “as is” and “as available” basis. To the fullest extent permitted by applicable law, MARS disclaims all implied, statutory, and other warranties, including any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising from course of dealing, usage, or trade practice. MARS does not warrant that the Services will be uninterrupted or error free, that all defects will be corrected, or that content or analytics will be accurate, complete, current, unique, or suitable for any employment, legal, or regulatory purpose. You acknowledge that the Services are tools to support Customer’s internal workflows and that Customer remains responsible for using them lawfully and appropriately.
Liability Allocation
To the fullest extent permitted by applicable law, MARS will not be liable to you for any indirect, incidental, special, exemplary, punitive, or consequential damages, or for any loss of profits, revenue, goodwill, business interruption, or loss of data, even if advised of the possibility of such damages and even if a remedy fails of its essential purpose. Nothing in these Terms limits liability that cannot be limited under applicable law or limits any equitable relief available for misuse of intellectual property or breach of confidentiality. You acknowledge that the Services are provided to you only as part of Customer’s subscription and that any refund, credit, service level, or other commercial remedy relating to the Services belongs, if at all, to Customer under the Customer Agreement rather than to you individually. The exclusions and limitations in this section form an essential basis of the bargain reflected in the Customer Agreement and these Terms.
To the fullest extent permitted by applicable law, you will be responsible for claims, losses, damages, costs, and expenses arising from your misuse of the Services, your breach of these Terms, your violation of applicable law, or your infringement or misappropriation of a third party’s rights. This allocation of responsibility is intended to align with Customer’s responsibility under the Customer Agreement for the acts and omissions of its authorized users. No action arising out of or relating to these Terms may be brought more than one year after the cause of action accrued, except to the extent that applicable law prohibits that limitation period.
Dispute Resolution and Miscellaneous
These Terms are governed by the laws of the State of New York, without regard to its conflict of laws principles. Subject to the arbitration provisions below, the state and federal courts located in New York will have exclusive jurisdiction over any action that these Terms permit to be filed in court, and you irrevocably consent to that jurisdiction and venue. Except for claims seeking injunctive or other equitable relief for misuse of intellectual property or breach of confidentiality, and except for claims eligible for small claims court, any dispute, claim, or controversy arising out of or relating to these Terms or your use of the Services will be resolved by binding arbitration administered by the American Arbitration Association under its commercial arbitration rules. The arbitration will be conducted by a single arbitrator in Nassau County, New York, and judgment on the award may be entered in any court of competent jurisdiction.
To the maximum extent permitted by applicable law, you waive any right to a jury trial and any right to participate in a class, collective, consolidated, or representative action arising out of or relating to these Terms or your use of the Services. MARS will not be liable for any failure or delay in performance caused by circumstances beyond its reasonable control, including natural disasters, acts of government, labor disputes, internet or telecommunications failures, distributed denial of service attacks, cyber terrorism, war, civil unrest, pandemics, or failures of third-party hosting or utility providers. You may not assign or transfer these Terms or any right to use the Services without MARS’s prior written consent, and any attempted assignment in violation of this sentence is void. You represent that you are not named on, and are not owned or controlled by a party named on, any applicable government restricted party list that would prohibit MARS from providing the Services, and you agree to comply with applicable export control, sanctions, and anti-corruption laws in connection with your use of the Services.
MARS may update these Terms from time to time to reflect changes to the Services, the Customer Agreement, or applicable law, provided that MARS will not materially diminish your rights under these Terms during the applicable subscription period except as required for legal, regulatory, or security reasons. MARS will make the then current version of these Terms available to you through the Services or otherwise notify you of material updates, and your continued access to or use of the Services after an update becomes effective constitutes your acceptance of the updated Terms. If you do not agree to an update, your sole recourse is to stop accessing and using the Services and to notify Customer that you no longer consent to these Terms.
These Terms, together with any applicable Customer policies, the Documentation, and the portions of the Customer Agreement that govern your use of the Services, constitute the entire agreement between you and MARS regarding your use of the Services and supersede all prior or contemporaneous understandings on that subject. If any provision of these Terms is held unenforceable, that provision will be enforced to the maximum extent permitted and the remaining provisions will remain in full force and effect. No waiver of any breach of these Terms is a waiver of any other breach, and failure to enforce any provision of these Terms will not constitute a waiver. By accessing or using the Services, you acknowledge that you have had the opportunity to review these Terms and to seek independent advice if you choose.