STANDARD TERMS AND CONDITIONS FOR SERVICE
These Standard Terms and Conditions are incorporated into and constitute a material part of the Rewarding Realtime Feedback Service Agreement (the “Agreement”) between SurveyMe, Inc. (“SurveyMe”, “we” or “us”) and the customer identified on the signature page of the Order Form (the “Customer”). Terms with their initial letters capitalized and not otherwise defined herein will have the meanings given to them in the Order Form. SurveyMe and Customer hereby agree as follows:
- Site Terms. The SurveyMe Terms of Service (“Site Terms”) apply to Company’s access and use of any SurveyMe website, including www.Survey-Me.com (the “SurveyMe Site”). In case of any discrepancy between this Agreement and the Site Terms, this Agreement shall prevail.
- Eligibility and Service Account.
3.1. Eligibility. All Authorized Users (defined below) must be at least 18 years old to access or use the Service. Customer represents and warrants that it and each Authorized User are not: (i) a resident of any country subject to a United States embargo or other similar United States export restrictions, including Iran, Libya or Syria; (ii) on the United States Treasury Department's list of Specifically Designated Nationals; (iii) on the United States Department of Commerce's Denied Persons List or Entity List; or (iv) on any other United States export control list.
3.2 Service Account. In order to access and use the Service, Customer will need to register for an account (“Service Account”) on the SurveyMe Site and accept this Agreement. Customer will: (i) provide accurate, truthful, current and complete information when creating a Service Account; (ii) maintain and promptly update Company’s Service Account information; (iii) maintain the security of Company’s Service Account by not sharing Company’s login credentials with others and restricting access to Company’s Service Account and Company’s computer; (iv) promptly notify us if Customer discovers or otherwise suspects any security breaches related to the Service, including if Company’s login credentials have been compromised; and (v) take sole responsibility for all activities that occur under Company’s Service Account and accept all risks of unauthorized access. Company’s password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else. Any distribution by Customer of its password may result in termination of Customer’s access to the Service.
4.1 License Grant. Subject to the terms of this Agreement and Customer’s compliance with any other agreement Customer may have entered with us governing Customer’s use of the Service, we hereby grant Customer a limited, non-exclusive and non-transferable license to, and to enable Customer’s employees or contractors who are authorized or otherwise designated or permitted by Customer to access and use the Service (each, an “Authorized User”) to access and use the Service for the Locations, solely for Customer’s own, internal use, testing and evaluation of the Service, at a corporate, regional or local level.
4.2. License Limitations. The preceding states the entirety of Customer’s rights with respect to the Service, and we reserve all rights in and to the Service not expressly granted to Customer in this Agreement. Without limiting the foregoing, Customer will not do, or authorize or permit any third party (including any Authorized User) to do, any of the following: (a) modify or otherwise make any derivative use of the Service; (b) use any data mining, robots or similar data gathering or extraction methods; (c) download (other than page caching) any portion of the Service or any information contained in the Service; (d) publicly perform, publicly display, distribute, license or sell the Service; (e) use the Service for any purpose other than Customer’s own internal use; (f) reverse engineer, decompile, disassemble or attempt to discover the source code for the Service; (g) modify, alter or create any derivative works of the Service; or (h) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Service.
4.3 Authorized Users. Customer is responsible for any access or use of the Service by Authorized Users. Further, Customer will ensure that all Authorized Users comply with Customer’s obligations under this Agreement (including, without limitation, compliance with the Site Terms). For this Agreement, the acts or omissions of any Authorized User are considered Customer’s acts or omissions.
- Ownership. The Service is the valuable property of SurveyMe and its licensors and is protected by copyright and other intellectual property laws and treaties. We and our licensors own all rights, title and interest in and to the Service, including all copyright and other intellectual property rights in the Service.
- Terms of Sale. During the Term, Customer will pay to SurveyMe the membership fees, compensation and other amounts for access to the Service (“Membership Costs”) as set forth on the Order Form, SurveyMe Site, through the Service or as negotiated between Customer and us. All Membership Costs under this Agreement are denominated in United States Dollars (unless otherwise stated on the Order Form), exclusive of applicable taxes, customs, duties, fees or other charges assessed or imposed by any governmental authority other than taxes imposed on or measured by SurveyMe’s net income. Any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will be liable for all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by SurveyMe in connection with any action, suit or other proceeding or any appeal thereof to collect amounts owed under this Agreement. Customer will pay or reimburse SurveyMe for all such taxes and charges imposed on any party with respect to any Services or measured by any amount payable to SurveyMe under this Agreement upon demand or provide certificates or other evidence of exemption. SurveyMe may modify the Membership Costs at any time upon notice to Customer, which notice shall be communicated either through a posting on the SurveyMe Site, through the Service or via e-mail.
- Use Conditions; Evaluation and Feedback.
7.1. Use Conditions. As a condition of accessing and using the Service, Customer must consistently post surveys, questions and rewards (“Content”) to the Service when Customer’s organization requires customer and/or employee and/or stakeholder feedback, and Customer must use the Service to attempt to gather real-time feedback.
7.2 Evaluation and Feedback. Customer will at its own risk and expense perform tests and other evaluations of the Service. Customer will provide to SurveyMe materials, information and feedback on the results of such tests and evaluations (including, without limitation, questions, comments, suggestions, or the like) regarding the performance, features, and functionality of the Service, as well as certain employee hiring information, data and other information requested by SurveyMe (“Feedback”) and will make Authorized Users or other Customer representatives available to SurveyMe on a reasonable basis for this purpose. Customer will not provide any such Feedback to any third party without SurveyMe's prior written consent in each instance. Customer hereby grants to SurveyMe an exclusive, royalty-free, irrevocable, perpetual worldwide right and license to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute any such Feedback without limitation. Further, SurveyMe will be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including, without limitation, developing, manufacturing, marketing and selling products and services incorporating such Feedback. SurveyMe will have no obligation to consider, use, return or preserve any Feedback Customer provides to us. Any Feedback Customer provides to us may or may not be treated confidentially by us, and SurveyMe will have no obligation or liability to Customer for the use or disclosure of any Feedback. Notwithstanding the foregoing, if we decide to publicly attribute any Feedback consisting of statistics, data or quotes to Customer, we will first ask Customer’s permission, which Customer will not unreasonably withhold or delay. If Customer fails to respond to a request within 30 days after such request, Customer’s permission will be deemed granted. For the avoidance of doubt, aggregating Customer’s statistics, data or comments and using them anonymously, is permitted without seeking additional permission. Customer should not expect any compensation of any kind from us with respect to Customer’s Feedback.
- Trademarks. During the Term Customer hereby grants to SurveyMe and its affiliates a nonexclusive, nontransferable, nonsublicensable, right to (a) use Customer’s trademarks, service marks, tradenames, logos and other identifiers (“Marks”) on theSurveyMe’s website, (b) identify Customer as a customer of SurveyMe and recipient and user of the Service in marketing and advertising materials in any form or media, and (c) as otherwise permitted by Customer. Except as provided in the preceding sentence, Customer reserves all rights, title and interest (including, without limitation, any intellectual property rights) that Customer may have in the Marks and associated goodwill. All goodwill arising out of SurveyMe's use of the Marks will inure to the sole benefit of Customer.
- Disclaimers. CUSTOMER ACKNOWLEDGES THE SERVICE MAY OCCASIONALLY CONTAIN BUGS, ERRORS AND DEFECTS. ACCORDINGLY, THE SERVICE IS PROVIDED “AS IS,” WITH ALL FAULTS, DEFECTS AND ERRORS, AND WITHOUT WARRANTY OF ANY KIND. SURVEYME DISCLAIMS ALL WARRANTIES (EXPRESS OR IMPLIED AND ARISING BY LAW OR OTHERWISE) REGARDING THE SERVICE AND ITS PERFORMANCE OR SUITABILITY FOR CUSTOMER’S INTENDED USE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. SURVEYME SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF OR INABILITY TO USE ANY SERVICE THAT THE SERVICE IS INTENDED TO ACCESS, OR FOR ANY LOSS OF DATA.
- Indemnification. Customer agrees to defend, indemnify and hold harmless SurveyMe, its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents (“SurveyMeParties”), from and against all claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to Customer’s use of, or inability to use, the Service.
- Limitation of Liability. THE SURVEYME PARTIES SHALL HAVE NO, AND CUSTOMER RELEASES THE SURVEYME PARTIES FROM, ANY LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE) FOR ANY DAMAGES SUSTAINED BY CUSTOMER ARISING FROM CUSTOMER’S USE OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOSS OF DATA, EVEN IF A SURVEYME PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SURVEYME PARTIES WITH RESPECT TO THE SERVICE, OR ANY USE OR INABILITY TO USE THE SERVICE EXCEED TEN DOLLARS ($10.00).
- Arbitration; Governing Law.
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES CUSTOMER TO ARBITRATE DISPUTES AND LIMITS THE MANNER IN WHICH CUSTOMER CAN SEEK RELIEF FROM US.
Customer and SurveyMe agree to arbitrate any dispute arising from this Agreement and Customer’s use of the Service, except that Customer and SurveyMe are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS CUSTOMER FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
Customer and SurveyMe each agree to notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to SurveyMe will be sent to SurveyMe, Inc., Attn: Lee Evans, 1601 Dove Street, STE 190, Newport Beach, CA 92660. Customer and SurveyMe further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in Orange County, California; that arbitration will be conducted confidentially by a single arbitrator in accordance with the JAMS Streamlined Arbitration Rules; and that the state or federal courts in Orange County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures the arbitrator has the authority to grant any remedy that would otherwise be available in court.
- Termination. This Agreement may be terminated by a party (i) for convenience as described in paragraph 1 of the Order Form, or (ii) if the other party materially breaches any material provision of this Agreement and the breaching party does not cure the material breach within thirty (30) days after the date of the non-breaching party’s written notice from of the material breach. Customer’s failure to pay any Membership Costs when due will constitute a material breach but will not be subject to the notice and cure periods described above. Either party may also terminate this Agreement at any time on notice (notice posted to the SurveyMe Site is sufficient for SurveyMe’s notice) in the event SurveyMe ceases doing business. In the event of the termination of this Agreement for any reason: (a) the license granted to Customer in this Agreement will terminate; (b) Customer and each Authorized User must immediately cease all use of the Service and delete Customer’s Service Account; and (c) Sections 1, 2, 5, 9-12, 13(c), 14-15 and the license granted to SurveyMe in Section 7.2 will survive any such termination.
- Nondisclosure. Customer shall not disclose to any person or entity any information about the Service, the Feedback or other results of Customer’s evaluation of the Service or any other confidential information of SurveyMe that becomes known to Customer. Customer’s obligation to maintain the confidentiality of such information shall not apply to information that (a) was known to Customer before receiving such information, or (b) is received by Customer from a third party who was legally entitled to make an unrestricted disclosure.
- General. (a) Governing Law. Any dispute between the parties will be governed by this Agreement and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, Customer and SurveyMe will not commence against the other a class action, class arbitration or other representative action or proceeding. (b) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect. (c) Assignment. Customer may not assign this Agreement or any of its rights under this Agreement without the prior written consent of SurveyMe, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by Customer, us, and each of Customer’s and our respective successors and assigns. (d) Entire Agreement. This Agreement sets forth our entire agreement with respect to Customer’s evaluation and use of the Service.