Terms and Conditions

These terms and conditions form part of the Agreement (defined and detailed below) between you and us which governs all orders made by you with us for the SurveyShack Software and Services (defined below), including software licences and consultancy, software design, graphical design, all related services and also SurveyGizmo software and services. Please read the following terms and conditions of service (“Terms”) carefully as they contain the legal terms and conditions that you agree to when you access or use the SurveyShack Software, Services and the SurveyGizmo services (for which we are an approved UK Reseller and Support provider). Please note that the Terms which apply specifically to the SurveyGizmo online survey tool are detailed separately from Clause 22 below.

1   General Terms
     
1.1   In this Agreement:
     
1.1.1   “Agreement” has the meaning given in clause 2.4;
1.1.2   “Service(s)” means the Bespoke Services, Custom Development Services, Managed Services, Panel Response Services (all defined in clause 13) required by you as specified in the proposal;
1.1.3   “SurveyShack Software” means any URL’s commissioned by or belonging to us, or any URL chosen by you, and any custom software developed for you or HR tools, Reporting (sometimes referred to as Reportal) tools, Custom Web Solutions and any subscription tools or licensed tools, other than those expressly referred to in respect to SurveyGizmo;
1.1.4   “Staff” includes employees and sub-contractors;
1.1.5   “SurveyGizmo” means SurveyGizmo LLC, with its offices at 4888 Pearl East Circle, Suite 100, Boulder Colorado 80301 used to facilitate Customer’s use, collection, integration and reporting of online data surveys;
1.1.6   “(W)we” “our” and “us” means SurveyShack (SSL) Ltd of Mountbatten House, Fairacres Windsor, Berkshire, SL4 4LE
1.1.7   “(Y)you” means the person (which includes a company or other business or organisation) contracting to obtain the Works (defined below) from us. Where “you” means more than one person, each one of you is responsible, individually, for each of the obligations of all of you under this Agreement;
1.1.8   “Personal Data”, “Process”, “Processor”, “Processing” shall have the same meaning as defined in the Data Protection Act 2018 (and General Data Protection Regulation (GDPR));
     
1.2   Paragraph headings are merely a guide and are not intended to be part of this agreement
     
2   The Agreement
     
2.1   We agree to supply you with the Services for the price set out in the proposal and subject to the terms set out in this Agreement.
2.2   This Agreement constitutes the entire agreement between us and supersedes all prior oral and written agreements between us. You confirm you have not entered into this Agreement on the basis of any representations that are not expressly incorporated into this Agreement.
2.3   No variations to this Agreement may be made by you unless made in writing and signed by you or your authorised representative and a director of SurveyShack (SSL) Limited.
2.4   “Agreement” means:
     
    2.4.1 amendments to these terms and conditions (made in accordance with clause 2.3);
    2.4.2 the proposal;
    2.4.3 documents explicitly referred to in the proposal;
    2.4.4 these terms and conditions.
     
2.5   Where there is any conflict between the various documents constituting the Agreement, the documents shall take precedence in the order they are listed in clause 2.4.
2.6   This Agreement will apply to the exclusion of all other terms and conditions including those you may purport to apply under your purchase order, confirmation of order, or similar document.
     
3   Orders and Access
     
3.1   We may give estimates where requested and you acknowledge that such estimates are based only on a brief and indefinite outline of your requirements. Estimates do not amount to proposals. Proposals are provided once we have more knowledge of your requirements and amount to an indication that we may be willing to supply a particular Service at a particular price. Proposals are valid for 30 days only, unless otherwise agreed with us in writing, after which we reserve the right to alter the price(s) specified in the proposal.
3.2   A proposal and/or an estimate does not amount to a contractual offer.
3.3   All prices specified in the proposal and/or estimate are exclusive of VAT or other applicable taxes unless specifically stated.
3.4   No contract will come into place until either you receive an email or letter, or a written invoice from us, which will act as our acceptance of your offer made by either your submission to us of a purchase order for, or made by your instruction to proceed with, the Services.
3.5   In the case of a SurveyShack Software licence, we will, once the SurveyShack Software is ready, notify you of your access details, which will give you access to the Software either via our website www.surveyshack.com or any other URL which you have chosen or from which the SurveyShack Software runs.
3.6   You agree to all these terms and conditions when you access or use the SurveyShack Software and Services that we provide to you via our website www.surveyshack.com or any other URL which you have chosen or from which the SurveyShack Software runs.
     
4   The Services – variation and cancellation
     
4.1   You shall be responsible for communicating to us all information we require and which you believe will be necessary for us to provide the Services to you and will notify us if there are any issues which may affect the provision of the Services by us.
4.2   The specification of the Services will be as set out in the proposal and you shall, before placing your order, check the specification thoroughly. By submitting an order to us, you confirm that the specification is correct.
4.3   We reserve the right to make changes to the specification from time to time so long as the alteration does not substantially reduce the value or performance of the Services.
4.4   If you ask us to alter the specification after the order has been placed, we may consider doing so, at our discretion, and only after discussing with you the nature of the change, the procedures for implementing such change and any variation to the charges payable by you. (Please also refer to clause 13.6).
4.5   If, after you have placed the order, you wish to cancel it, we may consider doing so at our discretion and subject to you paying us our anticipated loss due to this cancellation (including loss of reasonable profit).
     
5   Payment of Price
     
5.1   You must pay us the price specified in the proposal (or any other price notified to you where the validity of the proposal has expired) including any VAT or applicable taxes which may apply, in accordance with these terms and on the dates contained in it.
5.2   If we have undercharged you the VAT that should have been due on an order, you agree to pay us the outstanding VAT immediately. If we have overcharged you VAT, we shall refund the amount that you have overpaid.
5.3   Payment will be due in full immediately on receipt of our invoice unless stated by us in our proposal and/or invoice that payment is due within 30 days in which case the full price will be payable within 30 days of the date of our invoice, or other such credit terms as we expressly agree in writing, for the Services.
5.4   In the case of SurveyShack Software, the licence is a subscription for a pre-determined period of time and renewal fees will be payable depending on the specific subscription period.
5.5   If you fail to pay the whole or part of any sum you owe us by the time it becomes due for payment:
     
    5.5.1 we reserve the right to suspend your username and prevent you from having access to the Software and/or website;
    5.5.2 all sums which you owe us (whether under this Agreement or any other agreement we have with you) will become due for payment immediately, and we may issue court proceedings against you to recover them without giving you any further notice;
    5.5.3 we may charge you interest on the overdue sums at a rate of 6% over the base rate of Royal Bank of Scotland plc until payment in full is made.
     
5.6   You must pay us the whole of the amount due, and you may not set off or deduct anything from this amount without our written permission.
5.7   We may assign the benefit of any debt owed to us by you to any third party at any time, without giving you any notice.
     
6   Intellectual Property and other Rights
     
6.1   In consideration of the price paid for the Services, we grant you a non-exclusive, non-transferable, revocable, licence to use the Software.
6.2   You acknowledge that all intellectual property rights (including, without limitation, copyright, registered and unregistered trademarks and designs, and patents) in our questionnaires, SurveyShack Software (including code, algorithms and updates), programmes, website and any material of any nature which we provide you with belongs to us (or is licensed to us). Nothing in this Agreement is intended either to licence (except as permitted under this agreement) or transfer any intellectual property rights to you. For the avoidance of doubt, all intellectual property rights in any materials you provide to us, including your trade mark and brand, and any proprietary data, and all intellectual property rights in designs commissioned by us, for you, belong to you.
6.3   If we have agreed that we are to do anything under this Agreement on your instructions, and as a result we are in breach of any rights of anyone else (or anyone else threatens us with proceedings for breach of their rights) you agree to indemnify us against any loss we may suffer, including legal costs, in defending or resisting the proceedings or claim, or settling the proceedings or claim on legal advice. Your obligations under this clause will remain after the rest of this Agreement has terminated whatever the reason for termination.
6.4   If you become aware of any circumstances which may lead to a claim under clause 6.3 above, you agree to notify us about them as soon as possible.
6.5   If, as a result of such a claim or threat, we decide that it is no longer commercially sensible to proceed with your order, we may cancel the order in accordance with the provision set out below.
6.6   We will use reasonable commercial efforts to ensure that nothing we do under this Agreement will infringe the intellectual property rights of others. If we do anything under this Agreement which results in an actual or threatened infringement of the rights of anyone else (provided that it was something which was not done at your explicit direction or with your specific consent) (“a Claim”) we may at our option:
     
    6.6.1 obtain a licence or settlement of the Claim (at no cost to you);
    6.6.2 perform our obligation in a different way to avoid the Claim;
    6.6.3 cancel the Agreement.
     
6.7   You warrant that you will not modify, adapt, merge, translate, disassemble, reverse engineer or decompile the whole or any part of the SurveyShack Software unless expressly permitted by and in accordance with any statutory provisions.
     
7.   Assignment, Sub Contracting
     
7.1   We will not sub-contract the performance of our duties under this Agreement without your prior written consent, such consent not to be reasonably withheld.
7.2   We shall not assign, novate or otherwise transfer this Agreement or any of its rights and duties without your prior written consent.
7.3   You shall not, without our prior written consent, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of your rights or obligations under this Agreement.
     
8   Third Party Recommendations and Statements
     
8.1   As part of carrying out our obligations under this Agreement we may recommend or suggest that an alternative 3rd party carry out work for you, or supplies goods, software or services to you. By making this recommendation or suggestion, we do not guarantee the quality of that work or those goods, software or services and will not be liable for them.
8.2   Where we provide goods or software originally manufactured or developed by others, we may pass on to you statements or representations about such software or goods. We pass this information on to you in good faith but we do not undertake to verify them or guarantee their accuracy, and exclude any liability in relation to these goods and software.
     
9   Unforeseen Circumstances
     
9.1   We shall not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen event beyond our reasonable control including and without limitation fire, flood, industrial action, act of terrorism or act of God.
     
10   Warranties, Indemnities and Liability
     
10.1   We will not be liable for any consequential or indirect loss damage whether for loss of profit, loss of anticipated savings or costs of loss of staff time, and whether arising out from negligence, breach of contract or howsoever, even if we had been advised of the possibility of such damages.
10.2   We will not be liable in respect of any machine or system and will not incur any liability in the event that a system failure results from any interfacing with non-compliant hardware or third-party software.
10.3   You acknowledge that we cannot be held liable for any downtime in respect of any circumstance affecting our associated hosting partners and bandwidth carriers.
10.4   We do not warrant that the use of the Software will be uninterrupted or error free but we will use our best endeavours to prevent such errors and/or interruptions occurring, and we will remedy such errors and/or interruptions as soon as possible.
10.5   Our entire liability under this Agreement shall be limited to the price paid for the Services to which the claim relates in any one year.
10.6   Nothing at all in this agreement (which includes all documentation referred to in it) is designed or intended to exclude or restrict either party’s liability for the death of or personal injury to anyone caused by that party’s negligence or the negligence of anyone for whom that party are responsible, including employees, sub-contractors and agents.
10.7   You agree to indemnify us and hold us harmless from and against all and any claims, demands, loss, damage, liability, cost and expense arising out of by reason of any breach of this Agreement or breach of any of your representations and warranties contained herein.
     
11   Time for Performance
     
11.1   Unless otherwise agreed in writing between us, whenever we agree to do anything by or on a particular time and/or date, we will use our best endeavours to do so by or on that particular time and/or date, but we shall not be liable for late or non-performance.
     
12   Maintenance and Support
     
12.1   We are continually developing our Software (unless it is custom software) and from time to time may provide various updates and upgrades to the Software free of charge. We may also develop additional updates and upgrades which will not be free of charge, but will be optional extras for you to purchase. You acknowledge that such updates and upgrades may require our site to be temporarily rendered unusable whilst being installed.
12.2   Any maintenance requests must be made through the existing support system by sending an email to support@surveyshack.com. We will use our best endeavours to deal with all urgent queries within 6 normal working hours of receiving your request. Normal working hours are between 9am and 5pm, Monday to Friday. Any requests made after normal working hours will be dealt with the next working day.
12.3   Training sessions relating to the Software can be arranged at your request and based on your requirements. The training sessions will be charged on an hourly rate and you will be required to pay for any related travel and subsistence expenses, and the cost of the venue you require.
12.4   We will provide you with access to an electronic manual for the Software.
12.5   We reserve the right to download your database files for maintenance and backup purposes, and you are free to request an export file or to download directly from our website any of your own data at any time for your own use.
     
13   Special Terms
     
    Custom Software Development Services, Managed Services and Bespoke Services
     
13.1   Where we tailor the functionality of the SurveyShack Software to meet your needs (“Custom Development Services”), we reserve the right to incorporate any such software developed or customised by us for you into the SurveyShack Software for use with future clients, and clauses 13.4 to 13.6 will apply.
13.2   Where we personalise questionnaires to match your brand appearance and in accordance with your requirements (“Bespoke Services”) or create questions based on the information you require (“Managed Service”), clauses 13.4 to 13.6 will apply.
13.3   We will provide the Custom Software Development Services, Bespoke Services and Managed Services as required by you and as set out in the proposal and develop the Custom Software or questionnaires (“Bespoke Works”) in accordance with your instructions and written specification (which you will provide to us with your purchase order) and the deadlines agreed by us.
13.4   Once we have developed the Bespoke Works, we will send these to you for your approval and/or testing. If you are satisfied that the Bespoke Works have been produced in accordance with your specification, you will immediately notify us in writing of your acceptance of the Bespoke Works.
13.5   Where you are not satisfied that the Bespoke Works have been produced in accordance with your specification, you will notify us in writing within 5 working days from receiving the Bespoke Works from us and we will then carry out any amendments that need to be made and you will receive the Bespoke Works again for acceptance.
13.6   Where you make a change to your specification (including without limitation changes to your branding requirements, changes to the outcomes you wish to achieve through the questionnaires and changes to the format in which you wish to view the results of the questionnaire) that requires considerably more time being spent by us in developing the Bespoke Works (“Changes”), we reserve the right to charge for the additional work based on our hourly rates. We will not carry out any Changes until and unless the additional fees have been agreed with you.
     
    Panel Response Services
     
13.7   Where you wish to use our panel of members to answer your questionnaires (“Panel Response Services”) the terms in clauses 13.8 to 13.13 will apply.
13.8   You acknowledge that our panel members are paid and/or receive incentives and/or contributions to nominated charities for their services, and you agree that you will be responsible to us for all payments we make on your behalf to our panel members.
13.9   You acknowledge that whilst we will use our best endeavours to estimate the number of panel members we will need to ask to respond to your questionnaires (calculated in accordance with clause 13.10) in order to obtain the required number of responses for you, where complex situations arise, our estimates may be incorrect and more members may be required to be asked than estimated. In such circumstances, you will remain liable for the costs of such additional members required.
13.10   The gross number of member invites is calculated on the basis of assumed incidence rate, average expected country response rates and a drop-out percentage (the percentage of respondents that start but do not finish the questionnaire).
13.11   Our “drop-out” rates typically vary between 5% and 15%. If the drop out rate exceeds 25%, the project costs or the net sample size may be adjusted accordingly.
13.12   Although we make every effort to advise you on how to maximise response rates, we cannot be held responsible in any way for achieving them.
13.13   The final price payable by you for the Panel Response Services may be adjusted based on actual number of questions asked, incidence and final number of completed interviews to be requested and received.
     
14   Assignment
     
14.1   You shall not, without our prior written consent, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of your rights or obligations under this Agreement.
14.2   We may at any time assign or subcontract all or any of our rights or obligations under this agreement.
     
15   Notices
     
15.1   Where any notice is required to be given under this Agreement, it is validly given if it is in writing and sent by fax, email or prepaid first-class or airmail post to the correct fax number, email address or postal address of the relevant party as contained on the proposal or prior correspondence, or subsequently notified to the other party. Where sent by fax or email, the notice is deemed to have arrived 24 hours after the date and time of sending. If sent by email, the notice is deemed to have arrived 24 hours after it was sent (unless within those 24 hours the sender has been sent an email saying that the notice has not been delivered). If sent by post, the notice is deemed to have arrived on the third working day after the day on which it was sent (if sent to an address within the UK), the fifth working day (if sent to an address within the EU) or the tenth working day (anywhere else in the world) (unless in each case within that period it was returned as undelivered).
     
16   Confidentiality and Solicitation of Staff
     
16.1   For purposes of this Agreement, “Confidential Information” means, with respect to either party, any and all information in written, representational, electronic, verbal or other form relating directly or indirectly to the present or potential business, operation or financial condition of or relating to the disclosing party (including, but not limited to, information identified as being proprietary and/or confidential or pertaining to, pricing, marketing plans or strategy, volumes, services rendered, customers and suppliers lists, financial or technical or commercial or service matters or data, employee/agent/ consultant/officer/director related personal or sensitive data and any information which might reasonably be presumed to be proprietary or confidential in nature).
16.2   Confidential Information shall exclude any such information which:
     
    16.2.1 is known to the public (through no act or omission of the receiving party in violation of this Agreement);
    16.2.2 is lawfully acquired by the receiving party from an independent source having no obligation to maintain the confidentiality of such information;
    16.2.3 was known to the receiving party prior to its disclosure under this Agreement;
    16.2.4 was or is independently developed by the receiving party without breach of this Agreement; or
    16.2.5 is required to be disclosed by governmental or judicial order, in which case the party so required shall give the other party prompt written notice, where possible, and use reasonable efforts to ensure that such disclosure is accorded confidential treatment and also to enable such other party to seek a protective order or other appropriate remedy at such other party’s sole costs.
     
16.3   Each party agrees that it shall take reasonable measures to protect the confidentiality of and avoid disclosure and unauthorised use of the Confidential Information of the other party. Without limiting the foregoing, each party shall:
     
    16.3.1 take at least those measures that it takes to protect its own most highly confidential information
    16.3.2 ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees, and
    16.3.3 each party shall maintain a list of all individuals who are given access to any of the Confidential Information of the other party. Neither party shall make any copies of the Confidential Information of the other party unless the other party previously approves the same in writing. Each party shall reproduce the other party’s proprietary rights notices on any such approved.
     
16.4   You agree not to approach or engage any of our staff with whom you have had contact directly or indirectly within at least six months after the termination of this Agreement between you and us. For the avoidance of doubt, you will also not (for the six month period following termination of this Agreement) identify any of our staff to any other person with a view to that other person engaging our staff member.
     
17   Term and Termination
     
17.1   This Agreement shall commence at the point in time that a contract comes into place in accordance with clause 3.4, and shall continue until the completion of your research using the Software, unless terminated earlier in accordance with this clause
     
    17.1.1 In the case of an annual licence subscription this agreement will continue for the initial annual term, unless terminated earlier in accordance with this clause 17 and will automatically renew for further annual terms thereafter unless either party notifies the other party of its intent not to renew at least thirty (30) days before the end of the initial annual term or subsequent renewal annual term.
     
17.2   If you commit a breach of this Agreement (including non-payment of our fees) and you are unable to remedy such breach within 14 days of receiving written notice from us requiring the breach to be remedied, we may terminate this agreement immediately without notice.
17.3   Either of us may terminate this Agreement immediately without giving written notice to the other in the event that any of the following occurs:
     
    17.3.1 the presentation of a bankruptcy or winding-up petition against the other party;
    17.3.2 an encumbrancer takes possession, or a receiver is appointed over all or any part of the other party’s assets;
    17.3.3 the commencement of any winding-up process (other than for the purposes of reconstruction or amalgamation);
    17.3.4 the entry into or proposal of any form of voluntary arrangement or composition with the other party’s creditors;
    17.3.5 the other party becomes subject to an administration order;
    17.3.6 anything analogous to any of the foregoing in any jurisdiction; or
    17.3.7 the other party ceases or threatens to cease to carry on business.
     
17.4   The rights to terminate this Agreement given by this clause shall be without prejudice to any right or remedy of either party in respect of the breach concerned (if any) or any other breach.
17.5   On termination of this Agreement by us, we shall no longer be under any obligation to do any work for you under it, and you immediately become liable to pay us all sums which you owe us (in relation to this and other agreements we may have with you). In addition, you will be liable to pay us for all work carried out for you until the date of termination.
     
18   General
     
18.1   If we fail to rely on our strict legal rights under this Agreement, this will not prevent us from relying on those rights at any time in the future.
18.2   If any clause within this Agreement is deemed to be invalid then the particular offending clause in question shall be removed but the remainder of the Agreement shall remain effective and in force.
18.3   No person who is not a party to this Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
     
19   Disputes
     
19.1   If any dispute or grievance arises between us out of this Agreement, before taking any further action (such as requiring us to remedy an alleged fault within a specific time), we each agree that it will be discussed by the staff member of each of us who are most closely involved with the running of the contract. If that does not produce a resolution, the problem will be escalated to the respective superiors of each staff member respectively until the problem is dealt with. Only if the respective CEOs of each party cannot reach agreement on the dispute will the matter be taken to the next stage as set out below.
19.2   Should the escalation mechanism set out in Clause 19.1 above fail to be effective, before taking any other action, we will attempt in good faith to resolve the dispute or claim through an alternative dispute resolution (“ADR”) procedure as recommended to us by the Centre for Dispute Resolution Group or other recognised mediation authority. Unless we agree otherwise, the costs of the mediation shall be borne equally by each of us.
19.3   If the matter has not been resolved by an ADR procedure within 30 days of the initiation of such procedure (or such other period as we may agree in writing) or if either or us will not or ceases to participate in an ADR procedure the dispute shall be referred to the English Courts.
     
20   Governing Law and Jurisdiction
     
20.1   The Agreement shall be governed by, and construed in accordance with, the law of England and Wales.
20.2   The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter.
     
21   Data Protection
     
21.1   Each Party to this Agreement agrees to comply at all times with their respective obligations under the Data Protection Act 2018 (and the GDPR) in relation to all Personal Data that is Processed.
21.2   You agree that we may process Personal Data on your behalf solely for the legitimate reasons of the provision of Services to you under this Agreement.
21.3   We shall, when acting as a data processor, Process Personal Data in accordance with the principles of the Data Protection Act 2018 (and the GDPR).
21.4   We shall comply with all instructions given by you from time to time in relation to such Processing providing that your instructions comply with each parties’ obligations under the Data Protection Act 2018 (and the GDPR).
21.5   We agree that at all times when Processing Personal Data we will implement appropriate technical and organisational security measures (which we shall promptly provide to you upon request) governing the Processing of the Personal Data to be carried out. These measures shall ensure an appropriate level of security so as to avoid unauthorised or unlawful processing or accidental loss, destruction or damage of Personal Data including but not limited to taking all reasonable steps to ensure the reliability of staff having access to Personal Data.
21.6   We will provide you with your questionnaire response data (including Personal Data, if required) in connection with the Services we provide to you.
21.7   We will not disclose any Personal Data to any third parties without your prior written consent.
21.8   You agree that we may share with the sub processor companies with whom we work closely, the questionnaire response data, on the condition that they operate in compliance with Data protection Act 2018 (and the GDPR) and we have appropriate Data Processing Addendums in place between ourselves and these third parties.
21.9   The parties to this agreement agree that all disclosure and use of Response Data (defined below) will comply with the terms and conditions and privacy policies under which it was collected and all applicable laws, statutes, rules or regulations relating to such Response Data and the persons from whom it is collected. “Response Data” means data obtained from persons responding to and/or having received surveys or invitations to respond to appraisal from Customer. Customer further agrees and warrants that its collection, use and processing of Response Data from those persons complies with its stated privacy policies and complies with all applicable data protection laws. In particular, Customer will ensure that its privacy policies are clearly drawn to its users’ attention in a manner compliant with EU requirements. Customer is responsible for all actions with respect to personal data of persons that respond to Customer’s surveys or appraisals to whom Customer sends invitations. Title to and ownership of all intellectual property rights of the Response Data shall remain exclusively with Customer.

 

 

22   SurveyGizmo Software as a Service (SaaS) Acceptance of Agreement
     
    “Agreement” means these Terms and any terms provided or made available to you during the ordering or registration process (“Order Process”) which are incorporated into these Terms, including without limitation all pricing and payment terms. This Agreement is a legal agreement between SurveyShack (as an approved UK reseller of SurveyGizmo) and you (“you”) if you are acting on your behalf or the business entity or person for whom you are acting that will be using the SurveyGizmo Services (defined below) for any reason (“Customer”) as the user of the SurveyGizmo Services to be provided under this Agreement. You and any persons that you authorize to use Customer’s account may be referred to in these Terms as the “User.”
    If you are acting on behalf of Customer, you agree that you are an employee or agent of Customer and are entering into this Agreement for use of the SurveyGizmo Services by Customer for Customer’s own business purposes. You hereby agree that you enter into this Agreement on behalf of Customer and that you have the requisite authority to bind Customer to this Agreement.
    SurveyGizmo Services will be provided to Customer only on the condition that you accept all of the terms in this Agreement. By signing up for a SurveyGizmo account you validate the Agreement, and agree to the terms set out in the Agreement and the SurveyGizmo privacy policy. By accessing or otherwise using the SurveyGizmo Services, you acknowledge that you have read this Agreement, understand this Agreement and that Customer agrees to be bound by all of the terms of this Agreement.
    If you do not agree to the terms and conditions of this Agreement, we are unwilling to provide or make the SurveyGizmo Services available to Customer, and therefore, cancel and do not complete the order process or otherwise use the SurveyGizmo Services. If you do not accept this Agreement, Customer should immediately cease any use of the SurveyGizmo Services.
    In the case of inconsistencies between these Terms and information included in other materials (e.g., promotional materials and emails), these Terms will always govern and take precedence. In the case of inconsistencies between these Terms and the Order Process, the Order Process will always govern and take precedence.
     
23   During the Term (as defined in Section 35.1 (Term)), SurveyGizmo will provide Customer access to and use of SurveyGizmo’s hosted survey platform made available as software as a service described in this Agreement (collectively, the “SaaS”) pursuant to (a) quotes issued by SurveyShack and executed by Customer (each, a “Quote”). Affiliates of Customer may also purchase rights to access and use the SaaS under this Agreement pursuant to Quotes. For avoidance of doubt, separate Quotes are not required for each Affiliate. Access to and use of the SaaS by Customer, any Affiliates of Customer and their respective Users is subject to the terms and conditions of this Agreement. “User” means an employee or agent of Customer or its Affiliates for whom all Fees have been paid and who is authorized to access and use the SaaS to create and manage surveys on behalf of Customer or its Affiliates. Customer is responsible and liable for the acts and omissions of any Affiliates, Users and/or any other entity or individual who accesses and uses the SaaS under Customer’s account. Any act or omission by any Affiliate, User, entity or individual that would constitute a breach of this Agreement if such Affiliate, User, entity or individual were a party to this Agreement shall be deemed a breach of this Agreement by Customer. Except with respect to this Section 23, all uses of the term “Customer” herein shall be deemed to refer to Customer and any of its Affiliates.
     
24   Access Rights. Subject to Customer’s compliance with the terms and conditions of this Agreement, SurveyGizmo grants to Customer, during the Term, a non-exclusive, non-transferable, worldwide right to access and use the SaaS as set forth in this Agreement, for the purpose of permitting Customer to collect, process and analyse online data surveys.
     
25   Customer Use of SaaS. Customer agrees that it will not, and will not permit its personnel or any third party to grant access to the SaaS or any component thereof to any person in excess of the number of User licenses designated in the Quote. Customer will access and use the SaaS only in compliance with SurveyGizmo’s most current Acceptable Use Policy, available on SurveyGizmo’s web site (the “Acceptable Use Policy”). Any use of the SaaS in violation of the Acceptable Use Policy may result in SurveyGizmo’s immediate suspension of access to the SaaS and termination of this Agreement, provided, however that SurveyGizmo will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to cure the violation (if it is curable) prior to any such suspension or termination.
     
26   Fees, Invoicing, and Payment.
     
26.1   Fees. In consideration for providing the SaaS during the Term, and subject to the provisions of this Section 4, Customer shall pay to SurveyShack the fees set out in the Ordering Document (“Fees”), without any set-off or deductions of any kind. Except as otherwise specified herein or in a Ordering Document, (a) all payment obligations are non-cancellable and Fees and any other amounts paid are non-refundable, and (b) quantities purchased cannot be decreased during the Initial Term or relevant Renewal Term (as defined in Section 35.1 (Term)). SurveyShack shall have the right to increase the Fees for any Renewal Term provided that SurveyShack gives Customer at least sixty (60) days prior written notice of its intent to increase the Fees for such Renewal Terms. If the Fees include a minimum commitment by Customer, upon any termination of this Agreement prior to the expiration of the then-current Term, all remaining amounts in the minimum commitment shall become immediately due and payable by Customer. All amounts due under this Agreement shall be paid in the currency specified in the Ordering Document. Except as otherwise expressly provided in an Ordering Document, all amounts due under this Agreement shall be due and payable within thirty (30) days of the date of SurveyShack’s invoice.
26.2   Invoicing and Payment. Such charges shall be made in advance, either annually. SurveyShack will invoice Customer in advance, and in accordance with the relevant Ordering Document. Customer is responsible for providing complete and accurate billing and contact information to SurveyShack and notifying SurveyShack of any changes to such information.
     
27   Taxes. All Fees and other amounts payable by Customer to SurveyShack under this Agreement are exclusive of any tax, levy or similar governmental charge including value-added, sales, use, or withholding taxes, that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, sale or use of the SaaS, or otherwise arising out of this Agreement, including without limitation all sales, use, excise, import or export, value added, governmental permit fees, license fees, and customs (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the transactions contemplated hereunder, except that Customer shall have no liability for any income taxes assessed on SurveyGizmo on amounts paid by Customer under this Agreement. If SurveyShack has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, SurveyShack will invoice Customer and Customer will pay that amount unless Customer provides SurveyShack with a valid tax exemption certificate, including a valid value-added tax number, authorized by the appropriate taxing authority.
     
28   Response Data and Content.
     
28.1   Definitions. “Response Data” means data obtained from persons responding to and/or having received surveys from Customer. “Content” means any and all content or data (including but not limited to pictures, logos, survey questions, survey information, survey content, code embeds, CSS, Javascript, and all other content not listed here) that Customer and its Users submit to the SaaS and/or SurveyGizmo and/or SurveyShack directly.
     
28.2   SurveyGizmo Security and Use.
     
    (a) Security. SurveyGizmo shall maintain reasonable operational, physical, and technical safeguards for protection of the confidentiality, integrity, and availability of the Response Data and the Content. SurveyGizmo utilizes a third party application penetration testing company to perform an annual audit of the SaaS. SurveyGizmo is hosted by Amazon Web Services and a third party Service Organization Control (SOC) report is available at https://aws.amazon.com/compliance/soc-faqs/. SurveyGizmo also utilizes a third party company for PCI DSS Attestation. SurveyGizmo and/or SurveyShack shall promptly notify Customer if SurveyGizmo becomes aware of a security breach in SurveyGizmo’s network that resulted in a third party’s unauthorized access to the Response Data or Content.
    (b) Use. SurveyGizmo shall only use the Response Data and the Content to provide the SaaS and Services to Customer, to prevent or address service or technical problems, as compelled by law in accordance with Section 31.2 (Exceptions), or as otherwise expressly permitted by this Section. Customer acknowledges and agrees that SurveyGizmo may capture Response Data and/or Content metadata and aggregate such metadata with other data (“Aggregated Data”) solely for purposes of assessing and improving the performance of the SaaS. Under no circumstances will Aggregated Data or SurveyGizmo’s use of Aggregated Data identify Customer or Customer respondents.
     
28.3   Customer Obligations. Customer represents and warrants that (a) Customer has the necessary rights and licenses required to collect and provide its Response Data and Content to SurveyGizmo in connection with the SaaS, and (b) its collection and use of Response Data and Content does not violate any intellectual property rights or privacy rights of third parties, confidential relationships, applicable privacy policies or other contractual obligations, or federal, state or local laws or regulations. Customer is responsible for all actions with respect to personally identifiable information of persons that respond to Customer’s surveys or to whom Customer sends surveys.
     
29   Ownership. SurveyGizmo acknowledges and agrees that Customer shall retain and own all right, title and interest and all intellectual property rights in and to the Response Data and Content. Customer acknowledges and agrees that SurveyGizmo shall retain and own all right, title and interest and all intellectual property rights in and to the SaaS, the Project Deliverables, and all materials used by SurveyGizmo to provide the SaaS and Project Deliverables, and all copies thereof and customizations and modifications thereto (collectively, the “SurveyGizmo Materials”). Except for the limited access rights set forth in Section 2 (Access Rights) above, nothing herein transfers or conveys to Customer any right, title or interest in or to the SurveyGizmo Materials. SurveyGizmo reserves all rights in and to the SurveyGizmo Materials not expressly granted herein.
     
30   Right to Modify the SaaS; Use of Customer Feedback. SurveyGizmo may from time to time, in its sole discretion, change some or all of the functionality or any component of the SaaS. If Customer suggests or recommends any new features, functionality or any other changes to the SaaS, SurveyGizmo is free to use such suggestions and recommendations, without any attribution or compensation to any party.
     
31   Confidential Information
     
31.1   Obligations. Each party (“Recipient”) acknowledges that confidential information (including trade secrets and confidential technical, financial and business information) of the other party (“Discloser”) may be disclosed pursuant to this Agreement (collectively, “Confidential Information”). Recipient shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of Discloser. Recipient agrees that it will not disclose or use the Confidential Information of Discloser except for the purpose of fulfilling its obligations or exercising its rights under this Agreement and as otherwise authorized herein. Recipient will promptly report to Discloser any unauthorized use or disclosure of Discloser’s Confidential Information that Recipient becomes aware of and provide reasonable assistance to Discloser (or its licensors) in the investigation and prosecution of any such unauthorized use or disclosure.
31.2   Exceptions. Confidential Information shall not be subject to the restrictions set forth in this Section 31 to the extent that such information is: (a) already known by Recipient without an obligation of confidentiality, (b) publicly known or becomes publicly known through no unauthorized act of Recipient, (c) rightfully received from a third party without any obligation of confidentiality, (d) independently developed by Recipient without use of the Confidential Information of the Discloser, (e) approved by Discloser for disclosure, or (f) required to be disclosed pursuant to a requirement of a governmental agency or law (provided that Recipient provides Discloser with notice of such requirement prior to any such disclosure and takes steps reasonably necessary to maintain the information in confidence).
31.3   Third Parties. Recipient shall (and shall cause all of its Affiliates and their respective employees, contractors and consultants who have access to Confidential Information of Discloser to) safeguard and maintain the Confidential Information of Discloser in strict confidence. Recipient shall not (and shall cause its Affiliates and their respective employees, contractors and consultants not to) disclose, provide, or make such Confidential Information or any part thereof available in any form or medium to any third party person except to Recipient’s Affiliates and their respective employees, contractors and consultants who have a need to access such Confidential Information in order to enable Recipient to fulfil its obligations or exercise its rights under this Agreement. Customer agrees not to: (a) disclose to third parties (whether in writing or orally) any benchmark test data related to the SaaS, or (b) use SurveyGizmo’s Confidential Information to create any computer software or documentation that is substantially similar to the SaaS.
     
32   Warranties
     
32.1   By SurveyGizmo. SurveyGizmo warrants to Customer that: (a) the SaaS will perform in accordance with the documentation made available by SurveyGizmo to Customer (the “Documentation”); (b) it uses a commercially-available screening program to regularly screen the SaaS for viruses, malware and computer code intentionally designed to damage or destroy any Content or Response Data residing in the SaaS; and (c) the Services, if any, will be performed in a workmanlike manner in accordance with the SOW and generally accepted industry standards. If Customer reports to SurveyGizmo any noncompliance with the foregoing warranties, and, if applicable, provides to SurveyGizmo such detailed information as SurveyGizmo may reasonably require to permit SurveyGizmo to confirm or reproduce such non-conformity, then SurveyGizmo, at its expense and in its sole discretion, shall use commercially reasonable efforts to correct such non-conformity. In the event that SurveyGizmo cannot correct the non-conformity within a reasonable period of time after Customer’s report thereof, then SurveyGizmo and/or SurveyShack may terminate this Agreement upon written notice to Customer and provide Customer a pro-rata refund of any prepaid, unused Fees. The foregoing states SurveyGizmo’s sole obligations, and Customer’s exclusive remedies, in the event of the breach of any of the warranties set forth in this Section 32.1.
32.2   Disclaimer. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 32 ARE THE EXCLUSIVE WARRANTIES MADE BY SURVEYGIZMO WITH RESPECT TO THE SAAS, THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT. SURVEYGIZMO EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SAAS OR THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SURVEYGIZMO DOES NOT WARRANT THAT (A) THE SAAS WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS, (B) THE OPERATION OF THE SAAS WILL BE COMPLETELY SECURE, ERROR-FREE OR UNINTERRUPTED, OR (C) ALL ERRORS WILL BE CORRECTED. SURVEYGIZMO AND OR SURVEYSHACK SHALL HAVE NO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS IN ACCESS TO OR USE OF THE SAAS RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS CONNECTIONS OR EQUIPMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SUPPLIERS OF SURVEYGIZMO MAKE NO DIRECT WARRANTY OF ANY KIND TO CUSTOMER UNDER THIS AGREEMENT.
     
33   Indemnification.
     
33.1   Claims Against SurveyGizmo and or SurveyShack. Customer agrees to defend, at its own expense, SurveyGizmo, its affiliates, employees, officers, directors and shareholders and SurveyShack from and against any claim, suit, action or proceedings that arise from: (a) use of the SaaS by Customer, its Affiliates or any User, (b) any Content or Response Data; or (c) any failure by Customer, its Affiliates or any User to comply with all applicable laws and regulations (each a SurveyGizmo / SurveyShack “Claim”). Customer agrees to indemnify and hold SurveyGizmo and SurveyShack harmless against damages, losses, costs (including reasonable attorneys’ fees) or judgments awarded against SurveyGizmo or SurveyShack in connection with any SurveyGizmo/SurveyShack Claim.
33.2   Claims Against Customer. SurveyGizmo will defend, at its own expense, any claim, suit, action or proceeding against Customer brought by a third party to the extent based upon an allegation that the SaaS infringes any intellectual property rights of such third party (“Customer Claim”). SurveyGizmo agrees to indemnify and hold Customer harmless against damages, losses, costs (including reasonable attorneys’ fees) or judgments awarded against Customer in connection with any Customer Claim. Notwithstanding the foregoing, SurveyGizmo will have no obligation under this Section or otherwise with respect to any infringement claim based upon: (a) any use of the SaaS not in accordance with this Agreement; (b) any use of the SaaS in combination with products, equipment, software, or data not supplied or approved by SurveyGizmo if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (c) any modification of the SaaS by any person other than SurveyGizmo or its authorized agents or subcontractors. This Section 33.2 states SurveyGizmo’s entire liability and Customer’s sole and exclusive remedy for Customer Claims.
33.3   Procedures. Each party’s indemnification obligations set forth in this Section 33 are subject to the conditions that the indemnified party must: (a) notify the indemnifying party promptly in writing of such claim, (b) give the indemnifying party sole control of the defense, compromise or settlement of such claim, including any appeals, and (c) fully cooperate with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of such claim.
     
34   Limitation of Liability
    EXCEPT WITH RESPECT TO CUSTOMER’S BREACH OF THE ACCEPTABLE USE POLICY OR SECTION 28.3 (CUSTOMER OBLIGATIONS), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND ARISING OUT OF THE SAAS, SERVICES OR THIS AGREEMENT (INCLUDING WITHOUT LIMITATION COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF PROFITS OR LOSS OF DATA). EXCEPT FOR A PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S AGGREGATE, MAXIMUM LIABILITY FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATED TO THE SAAS, SERVICES OR THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (A) THE AMOUNT OF ALL FEES PAID TO SURVEYSHACK BY CUSTOMER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100). THE LIMITATIONS SET FORTH IN THIS AGREEMENT APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT (WHETHER ON THE BASIS OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF LOSS OR DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT. Customer acknowledges that SurveyShack’s pricing reflects the allocation of risk set forth in this Agreement and that SurveyShack would not enter this Agreement without these protections.
     
35   Term and Termination.
     
35.1   Term. This Agreement will commence on the date that you agree to be bound by this Agreement or the date that you begin using the SaaS (whichever occurs first) (“Effective Date”) and continue for the initial period specified on the Ordering Document or if no Ordering Document is used, thirty (30) days (the “Initial Term”), unless terminated earlier in accordance with this Section 35. This Agreement shall automatically renew for successive additional terms specified on the Ordering Document or in no Ordering Document is used, additional thirty (30) day periods (each, a “Renewal Term”), unless either party notifies the other party of its intent not to renew at least thirty (30) days before the end of the Initial Term or applicable Renewal Term. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”
35.2   Termination. This Agreement may be terminated:
     
    (a) by SurveyShack if Customer fails to make any payment when due under this Agreement and fails to cure such failure within ten (10) days of receiving notice thereof in writing from SurveyShack;
    (b) by SurveyShack immediately if Customer violates the Acceptable Use Policy; or
    (c) by either party in the event the other party materially breaches any of its obligations under this Agreement and fails to cure such breach or provide the other party with an acceptable plan for curing such breach within thirty (30) days after receipt by the breaching party of written notice specifying the breach.
     
35.3   Effect of Termination. Upon any termination of this Agreement: (a) SurveyShack may immediately cease providing the SaaS; (b) SurveyGizmo may immediately terminate Customer’s access to the SaaS (including without limitation any Content or Response Data stored therein); (c) Customer shall immediately cease all use of SurveyGizmo Proprietary Marks; (d) Customer shall forthwith pay to SurveyShack all amounts owing under this Agreement as of the date of termination; (e) the rights granted under Sections 24 (Access Rights) and 36.3 (Use of Proprietary Marks) will automatically terminate; and (f) either party may request of the other that its Confidential Information (including Response Data and Content) be returned or destroyed. If no request is received for the return of Confidential Information within thirty (30) days of the termination of this Agreement, the requesting party acknowledges and agrees that the responding party may delete or destroy all such Confidential Information.
35.4   Survival. The parties hereto agree that the provisions hereof requiring performance or fulfilment after the expiration or termination of this Agreement shall survive such expiration or termination. Without limiting the generality of the foregoing sentence, the provisions of this Agreement relating to ownership, Confidential Information, indemnification, warranty disclaimer, and limits of liability shall survive the expiration or termination of this Agreement.
     
36   General
     
36.1   Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, confirmed e-mail, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, 1 day after deposit with an overnight courier, 5 days after deposit in the mail, or upon confirmation of receipt of facsimile or email. Notices will be sent to a party at its address set forth in the recitals to this Agreement, provided via registration or such other address as that party may specify in writing pursuant to this Section.
36.2   Publicity. Customer consents to SurveyGizmo’s use of Customer’s name and/or logo on SurveyGizmo’s website and/or in its marketing materials, for the sole purpose of identifying Customer as a user of the SaaS.
36.3   Use of Proprietary Marks. Customer shall not use any trademark, service mark, logo, product name, or company name of SurveyGizmo (collectively “SurveyGizmo Proprietary Marks”) without SurveyGizmo’s express prior written consent in each instance. Provided that SurveyGizmo provides written approval of Customer’s requested use of SurveyGizmo Proprietary Marks, Customer shall, in addition to any other instructions or requirements provided by SurveyGizmo with such consent: (a) refer to SurveyGizmo LLC as the owner of the SurveyGizmo Proprietary Marks; and (b) not use the SurveyGizmo Proprietary Marks in a manner that, in SurveyGizmo’s sole judgement, is likely to harm the goodwill or reputation associated with the SurveyGizmo Proprietary Marks. Notwithstanding any provision to the contrary herein, SurveyGizmo may at any time require Customer to discontinue its use of SurveyGizmo Proprietary Marks. No ownership interest or other rights in or to the SurveyGizmo Proprietary Marks shall transfer to Customer by virtue of its use of the SurveyGizmo Proprietary Marks hereunder, and any such use of the SurveyGizmo Proprietary Marks by Customer, as permitted under this Agreement, shall inure to the benefit of SurveyGizmo. SurveyGizmo reserves all rights in and to the SurveyGizmo Proprietary Marks not expressly granted herein.
36.4   Service Videos. Customer consents to SurveyGizmo recording and screencasting its support sessions with Customer, solely for purposes of enabling SurveyGizmo’s provision of support to Customer and its creation of step-by-step videos specific to Customer’s SaaS-related issues. For the avoidance of doubt, such videos shall be made available solely to Customer, and shall automatically time out after thirty (30) days.
36.5   Force Majeure. If the performance of any obligation under this Agreement is prevented, restricted, or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labour disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers, war or other violence; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder whenever such causes are removed.
36.6   Independent Contractor. Neither party’s employees shall be deemed at any time to be employees or servants of the other party. Each party shall act as an independent contractor of the other for all purposes. Unless otherwise agreed to in writing, SurveyGizmo does not undertake to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer’s business or operations.
36.7   Anti-Corruption. Each party agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from the other party’s employees or agents in connection with this Agreement. Each party further agrees that reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of this Section, such party will use reasonable efforts to promptly notify the other party.
36.8   US Government Customers. If access to the SaaS is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then as a “commercial item” (as such term is defined at 48 CFR § 2.101, the Government’s rights in the SaaS and Documentation will be only as set forth (a) in this Agreement, or (b) as provided in 48 CFR § 12.212 (Computer Software), and, for Department of Defense use or disclosure, 48 CFR § 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation), whichever set of rights provided in (a) or (b) is the more restrictive.
36.9   Export Control. The SaaS may be subject to export control laws and regulations. Customer shall not, directly or indirectly, export, re-export, transmit, or make the SaaS accessible from, any jurisdiction or country in which such activity is prohibited by law or regulation. Customer shall comply with all applicable domestic and international laws, rules, and regulations, and complete all required undertakings (including obtaining any necessary export license or other government approval), prior to exporting, re-exporting, transmitting, or otherwise making the SaaS available outside of the U.S. Customer represents and warrants that it (a) is not named on any U.S., or UK government list of persons or entities prohibited from receiving exports, and (b) is not located in, under the control of, a national of, or resident of any U.S., UK, or EU embargoed country.
36.1   Severability. To the extent that any provision, portion or extent of this Agreement is deemed to be invalid, illegal or unenforceable, such provision, portion or extent shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of this Agreement, as the case may be, shall remain binding upon the parties.
36.11   Assignment. Neither party may assign nor transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that either party may assign this Agreement by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganisation or otherwise, provided that if the Agreement is assigned to a competitor of the non-assigning party, the non-assigning party shall have the option to terminate this Agreement upon written notice to the assigning party. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.
36.12   Entire Agreement; Order of Precedence; Waiver. Unless there is a separately negotiated agreement between Customer and SurveyShack, in which case such agreement will control, this Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement including, without limitation, any terms in any Customer purchase order or acknowledgment. Any Purchase Order terms shall be superseded by this Agreement, and will be deemed to be for administrative purposes only with no legal effect. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
36.13   Changes. SurveyShack may from time to time, in its sole discretion, change the terms and conditions of this Agreement. If any such change is material, as determined in SurveyShack’s sole discretion, SurveyShack will update the terms and conditions on their website. By continuing to access and use the SaaS after those changes become effective, Customer agrees to be bound by the revised Agreement.
36.14   Dispute Resolution. If any dispute related to this Agreement cannot be resolved by negotiation, the parties agree, upon either party giving written notice, the parties will submit the dispute to non-binding mediation by a mediator mutually selected by the parties. If the parties are unable to agree upon a mediator, the American Arbitration Association shall appoint the mediator. In any event, the mediation shall take place within thirty (30) days of the date that a party gives the other party written notice of its desire to mediate the dispute. The cost of the mediation shall be borne equally by the parties. CUSTOMER MUST CONTACT SURVEYSHACK WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS THAT GIVE RISE TO A CLAIM, OR CUSTOMER WAIVES ITS RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT OR FACTS.
36.15   Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without reference to its conflict or choice of law rules or principles. Customer hereby submits to the exclusive jurisdiction of the courts of England and Wales for any legal action arising out of this Agreement or the performance of the obligations hereunder or thereunder.
     
37   Feature-Specific Terms and Conditions. The following feature-specific provisions shall apply to the extent Customer uses APIs, SG Fonts, or HR 360, as set forth in this Section 15.
     
37.1   API. SurveyGizmo may make available from time to time certain application programming interfaces that enable the SaaS to interface with other platforms and applications (“APIs”). SurveyGizmo may iterate on the version of the API and Customer agrees it shall periodically check for the latest version. Subject to Customer’s compliance with this Agreement, SurveyGizmo grants to Customer a revocable (upon written notice to Customer), non-exclusive, non-transferable right to use the API for the sole purpose of enabling applications to interface with the SaaS. Customer agrees it shall not use the APIs for any other purpose and shall not make the APIs available to any third party other than its Users as permitted herein.
37.2   Fonts. The SaaS provides certain fonts (the “SG Fonts”) for Customer to use in the creation of surveys. The instructions available through the SaaS instruct Users how they may utilize fonts other than the SG Fonts (“Customer Fonts”) in the creation of surveys. By using Customer Fonts, Customer represents and warrants that it owns or has all necessary rights to use Customer Fonts and that its use of Customer Fonts does not and will not infringe on the intellectual property rights of any third party. In no event will SurveyGizmo be responsible or liable for use of any Customer Fonts.
37.3   NewMeasures LLC Human Resources 360 Integration. If Customer uses NewMeasures LLC’s Human Resources 360 Integration (“HR 360”), then Customer agrees it shall not use any proprietary information (e.g., survey items, normative data) provided by NewMeasures LLC outside of the scope of this Agreement. Customer further agrees that NewMeasures LLC shall be authorized to include Customer in its larger database for the purposes of aggregating and benchmarking, but under no circumstances will the aggregate data identify in any way Customer or its survey respondents.

 

Valid from: 25th May 2018

Last Updated: 16th July 2019