BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THESE MASTER TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE MASTER TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE MASTER TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Client and Survata, Inc. (“Company”) hereby agree as follows:
1. These Master Terms and Conditions shall apply to Client’s use of Company’s services described herein, the website located at www.survata.com (the “Site”) and any related mobile applications (collectively, the “Services”) ordered by Client under any ordering document (including any online form presented through the Services) specifying the Services to be provided hereunder (“Order”). These Master Terms and Conditions and all Orders (collectively referred to as this “Agreement”) represent the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Company ordering document, and no terms included in any such purchase order or other ordering document shall apply to the Services. In the event of a conflict between these Master Terms and Conditions and an Order, these Master Terms shall control (except to the extent the Order specifically provides that its provisions shall supersede). All capitalized terms not defined herein shall have the meanings attributed in the Order.
2. Services Description; Right to Use the Services.
2.1 The Services are designed to provide Clients with access to an online platform permitting a Client to create surveys or request that the Company create surveys on the Client’s behalf (each, a “Survey”) and to request that the Company create certain survey questions, solicit certain survey responses and deliver a target number of such Survey responses and related data (“Responses”) from a targeted audience (“Respondents”).
2.2 Company grants to Client a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by Client or on Client’s behalf, and who are Client’s employees, agents or contractors (“Users”), to access and use the Services subject to the terms of this Agreement. Unless otherwise expressly authorized herein or in the Services, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services
3. Usage Restrictions and Representations.
3.1 Client shall not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (“Software”); (b) modify, translate, or create derivative works based on the Services or Software, or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Company; or (d) remove any proprietary notices or labels from the Services or Software. Client shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service or otherwise outside of the scope of the express rights granted herein.
3.2 Client shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Company’s provision of the Services. Client shall be responsible for maintaining the security of its account access passwords. Client represents and warrants that Client will use the Services only in compliance applicable laws and regulations. Client shall be liable for all acts and omissions of its Users.
3.3 Client is responsible for the content and other materials it submits or posts on or through the Services or the Site or transmit to or share with other Users including, without limitation, Survey questions you create and any other material to be distributed to Respondents (collectively, “Client Content”). Client shall not submit or post any Client Content which:
- (a) it does not own or have sufficient right and license to use, copy, and upload to the Services, including, without limitation, all copyright and rights of publicity contained therein, or which in any way infringes any intellectual property or other proprietary rights of any party (including without limitation trademarks);
- (b) directly or indirectly requests (or that a reasonable person would understand as a request) that a Respondent provide any information which can be used to identify the Respondent, including without limitation name, address, email address, telephone number, payment information, or IP address;
- (c) harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable;
- (d) poses or creates a privacy or security risk to any person;
- (e) is fraudulent, misleading, or untruthful; or
- (f) violates any applicable local, state, national or international law, or any regulations having the force of law.
Company reserves the right to modify, remove, or delete any Survey or any portion thereof which Company determines in its sole discretion violates any of the foregoing and to suspend any Services relating to such Survey as necessary.
3.4 Company may immediately suspend Client’s password, account, and access to the Services if (a) Client fails to make payment due within fifteen (15) business days after Company has provided Client with notice of such failure; or (b) Client materially breaches these Master Terms and Conditions. Any suspension by Company of the Services under the preceding sentence shall not relieve Client of its payment obligations under this Agreement.
4. Proprietary Rights.
4.1 Company owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Client or any other party relating to the Services or Software shall be owned by Company. Client hereby makes all assignments necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Company.
4.2 By submitting or posting any Client Content, Client hereby grants and will grant Company a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, publicly display, transmit, perform, distribute, store, modify and otherwise use your Client Content in connection with the operation of the Services.
4.3 To the extent the Services provided under this Agreement include Surveys, or modification of any Survey at the request of Client (“Company Survey Material”), Company grants to Client a non-exclusive, personal, non-transferable, revocable non-sublicensable license to copy, publicly display, transmit, perform, distribute, store, modify and otherwise use the Company Survey Material to solicit survey responses. For clarity, Company Survey Material does not include Responses.
4.4 Client owns and shall retain all Client Content. Subject to payment for Services under the applicable Order, Client shall own all right, title, and interest in and to the Responses. Notwithstanding anything to the contrary herein, Company shall have the right to collect and analyze data (including Responses) and other information relating to the use and performance of various aspects of the Services by Client and Respondents and Company will be free to use such (during the term hereof) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with providing the Services.
4.5 To the extent you provide Company with any browsing data regarding an individual, obtained from cookies, web pixels, or other similar technology (collectively, “End User Data”) in connection with the Services, such End User Data shall be considered Client’s Confidential Information (defined below), and accordingly, Company (i) will not use such End User Data except to provide the Services to Client, (ii) will not share such End User Data with any third party (except as otherwise authorized in this Agreement or in writing by Client). Company will segregate Client’s End User Data from any data provided by other clients of Company. Client acknowledges that at any time, it may cease (i) to provide certain End User Data to Company, or (ii) to use technologies designed to permit Company to receive such End User Data, provided that Company shall not be liable for its inability to fulfill its obligations under any Order solely to the extent resulting from the limited or non-availability of Client’s End User Data.
5. Billing and Payment.
5.1 Client shall pay all fees as quoted at the point of purchase (“Fees”), which may include, without limitation, usage fees based on the number of Responses which Company delivers. Client shall provide Company information regarding its credit card or other payment instrument. You represent and warrant to Company that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. If you dispute any charges you must let Company know within fifteen (15) days after the date that Company charges you.
5.2 Client shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. All fees are non-cancelable and nonrefundable, except as expressly provided herein. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Company’s income), even if such amounts are not listed on an Order. Client shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
6. Representations, Disclaimer of Warranties.
6.1 Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement. Company warrants to Client that it will (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. Client must notify Company of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies.
6.2 For breach of the express warranty set forth above, Client’s exclusive remedy shall be the re-performance of the deficient Services. If Company cannot re-perform such deficient Services as warranted, Client shall be entitled to recover a pro-rata portion of the fees paid to Company for such deficient Services, and such refund shall be Company’s entire liability.
6.3 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.
6.4 Client acknowledges and agrees that Company does not guarantee that it will be able to obtain a certain number of Responses or according to any specific timeframe. Notwithstanding the foregoing, Company will provide Client a pro-rated refund for each Respondent for which Company was unable to deliver a Survey.
6.5 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, COMPANY AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. COMPANY AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CLIENT MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET CLIENT’S REQUIREMENTS. CLIENT ACKNOWLEDGES THAT NEITHER COMPANY NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY COMPANY, THE SERVICES ARE PROVIDED TO CLIENT ON AN “AS IS” BASIS.
7. Indemnification. Client shall defend, indemnify, and hold harmless Company from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from Client’s breach of this Agreement, your Client Content, or Client’s other access, contribution to, use or misuse of the Services. Company shall provide notice to Client of any such claim, suit or demand. Company reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, Client agrees to cooperate with any reasonable requests assisting Company’s defense of such matter.
8. Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM CLIENT’S BREACH OF SECTION 3 OR ANY INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (OR, IN THE CASE OF CLIENT’S LIABILITY, PAID AND/OR PAYABLE) BY CLIENT IN THE PRECEEDING 12 MONTHS.
9. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information except as necessary to exercise the Receiving Party’s rights or perform its obligations under this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can document (i) is or becomes generally available to the public; or (ii) was in its possession or known by its prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. In the event that the Receiving Party is required by law to make any disclosure of any of the Confidential Information of the Disclosing Party, by subpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection.
10. Notices. Company may give notice applicable to Company’s general Services Client base by means of a general notice on the Services portal, and notices specific to Client by electronic mail to Client’s e-mail address on record in Company’s account information or by written communication sent by first class mail or pre-paid post to Client’s address on record in Company’s account information. If Client has a dispute with Company, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, Client shall promptly send written notice to Company at 33 Longview Court, San Francisco, CA 94131.
11. General provisions.
11.1 Client agrees that Company may list Client’s name (including by displaying any Client trademark) for the purpose of identifying the business relationship between the parties on Company’s website and in other marketing and advertising collateral, together with a list of other Clients.
11.2 Any action, Claim, or dispute related to this Agreement will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law, and tried and litigated exclusively in the state and federal courts located in the County of San Francisco, California. The Uniform Computer Information Transactions Act will not apply to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
11.3 This Agreement (including all Order(s)), represents the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. Client acknowledges that this Agreement is a contract between Client and Company, even though it may be electronic and not physically signed by Client and Company, and it governs Client’s use of the Services and takes the place of any prior agreements between Client and Company. This Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
11.4 No joint venture, partnership, employment, or agency relationship exists between Company and Client as a result of this Agreement or use of the Services. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company related to this Agreement. Any purported assignment in violation of this Section shall be void.