(a) These terms and conditions for services (these "Terms") are the only terms that govern the provision of services by Change Sciences Group, Inc. ("Service Provider") to you ("Customer"). Service Provider and Customer may each be referred to individually as a "Party," or collectively as "the Parties."
(b) The accompanying order confirmation (the "Order Confirmation") and these Terms (collectively, this "Agreement") comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, the Order Confirmation shall govern, unless the Order Confirmation expressly states that the terms and conditions of the Order Confirmation shall control.
(c) These Terms prevail over any of Customer's general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
Service Provider has developed the SoundingBox software platform and service (the "Platform") that enables Customer to run user experience assessments and allow Customer to perform and record tests for the Customer’s benefit. Service Provider shall provide the services to Customer as described in the Order Confirmation (the "Services") in accordance with these Terms.
3. Performance Dates
Service Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.
4. Customer's Obligations
(a) ensure that all Customer Users (defined below) comply with these Terms, do not share login details and passwords, use the Services in compliance with all applicable laws, rules and regulations, and do not permit direct or indirect access to the Services in a way that circumvents the limit agreed upon in the Order Confirmation;
(b) cooperate with Service Provider in all matters relating to the Services;
(c) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
(d) provide such customer materials or information as Service Provider may reasonably request and/or Customer considers reasonably necessary to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and
(e) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
5. Prohibited Uses of Platform or Service
Prohibited Uses of Self-Service Solution. Customer will not (and will ensure that Customer Users do not): (a) "frame," distribute, resell, or permit access to the Self-Service Solution by any third party other than to invite Participants to participate in Studies in accordance with this Agreement; (b) permit multiple Customer Users to access the Self-Service Solution using shared login credentials (i.e., a shared email address and password); (c) use the Self-Service Solution other than in compliance with this Agreement and applicable federal, state, and local laws; (d) interfere with the Self-Service Solution or disrupt any other user’s access to the Self-Service Solution; (e) reverse engineer, attempt to gain unauthorized access to the Self-Service Solution, or attempt to discover the underlying source code or structure of the Self-Service Solution; (f) submit to the Self-Service Solution any content or data that is false, misleading, defamatory, threatening, offensive, or infringing of intellectual property rights, or that contains mass mailings or any form of "spam"; (g) submit to the Self-Service Solution any routine, device or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back door or software routine, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications; or (h) use any robot, spider, data scraping or extraction tool or similar mechanism with respect to the Self-Service Solution.
6. Customer's Acts or Omissions
If Service Provider's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
7. Change Orders
(a) If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Service Provider shall, within a reasonable time after such request, provide a written estimate to Customer of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the fees and other charges for the Services arising from the change;
(iii) the likely effect of the change on the Services; and
(iv) any other impact the change might have on the performance of this Agreement.
(b) Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 28.
(c) Notwithstanding Section 7(a) and Section 7(b), Service Provider may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Order Confirmation.
(d) Service Provider may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order Confirmation.
8. Fees and Expenses; Payment Terms; Interest on Late Payments
(a) In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation.
(b) Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services.
(c) Customer shall pay all invoiced amounts due to Service Provider within thirty (60) days of receipt of Service Provider's invoice. Customer shall make all payments hereunder in US dollars by credit card/wire transfer/check.
(d) In the event payments are not received by Service Provider within 60 days after becoming due, Service Provider may, at its sole discretion withhold access to customer data. If Customer fails to pay Service Provider (60) days after an invoice date Service Provider will have no obligation to maintain or provide access to Customer Data and may, unless legally prohibited, delete all Customer data in our systems or otherwise in our control.
Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.
10. Intellectual Property
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Service Provider’s IPR") in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the "Deliverables") shall be owned by Service Provider. Service Provider hereby grants Customer a license to use all relevant Service Provider’s IPR free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
11. Customer Users
Service Provider will provision user accounts for the Platform for each user designated by the Customer’s "Administrator," as identified in the Order Confirmation (each a "Customer User"), up to the number of Customer User accounts allowed under the Order Confirmation.
12. Customer Content
(a) As between the Parties, Customer retains all right, title, and interest in any and all data, files, attachments, text, images, and other content that Customer uploads, submits, transmits, or otherwise provides to Service Provider in connection with the Services (collectively, "Customer Content"). Customer content includes survey answers and other data and content directly or indirectly submitted or provided to Service Provider by Customer Users. Customer represents and warrants that it has all rights, permissions, and consents necessary to (1) submit all Customer Content to Service Provider, (b) grant Service Provider limited rights to user Customer Content set forth in the Terms and/or the Order Confirmation, and (c) disclose and display Customer Content to its Customer Users. Service Provider agrees that the reports and information obtained by Customers through Customer originated testing or use of the Platform and/or Services ("Customer Tests") will be owned by Customer (provided, however, the Service Provider retains all right, title, and interest in and to reporting functionality of the Platform and Services and Customer grants to Service Provider a non-exclusive license to use Customer Content to (i) perform Service Provider’s obligations in connection with the Terms and the Order Confirmation and (ii) use such Customer Content in the aggregate).
(b) Service Provider may from time-to-time conduct studies ("Service Provider Tests") on Customers, Customer’s websites, etc. A Customer’s website may or may not be included in a Service Provider Test. Service Provider Tests are only conducted on websites available to the public. Customer hereby acknowledges and agrees that such information gathered from Service Provider Tests may be licensed by Service Provider to other customers and/or used Service Provider marketing.
(c) Customer hereby agrees that Service Provider will have a perpetual right to use and incorporate into the Platform, Services, and/or other Service Provider materials (including for advertising and marketing), any feedback for enhancement or testimonials that Customer or Customer Users provide to Service Provider concerning the Platform and Service without any obligation or compensation.
(d) Customer hereby agrees that Service Provider may use and incorporate into the Platform, Services, and/or other Service Provider materials (including for advertising and marketing), Customer’s name and/or trademark, including logos, for the sole purpose of referencing a Customer, and that such use is hereby licensed perpetually to Service Provider royalty-free or constitutes trademark fair use.
(e) Upon termination Service Provider will delete Customer Content from its systems.
13. Confidential Information
(a) All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by Service Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of the Service Provider. Confidential Information does not include information that is:
(i) in the public domain;
(ii) known to Customer at the time of disclosure; or
(iii) rightfully obtained by Customer on a non-confidential basis from a third party.
(b) Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.
(c) Service Provider shall be entitled to injunctive relief for any violation of this Section.
14. Representation and Warranty
(a) Service Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(b) The Service Provider shall not be liable for a breach of the warranty set forth in Section 14(a) unless Customer gives written notice of the defective Services, reasonably described, to Service Provider within five (5) days of the time when Customer discovers or ought to have discovered that the Services were defective.
(c) Subject to Section 14(b), Service Provider shall, in its sole discretion, either:
(i) repair or re-perform such Services (or the defective part); or
(ii) credit or refund the price of such Services at the pro rata contract rate.
(d) THE REMEDIES SET FORTH IN SECTION 14(c) SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.
15. Disclaimer of Warranties
EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 14(a) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
16. Limitation of Liability
(a) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement, at its sole discretion, with immediate effect upon written notice to Customer, if Customer:
(a) fails to pay any amount when due under this Agreement;
(b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
19. Force Majeure
The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
21. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. Governing Law.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
23. Submission to Jurisdiction
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of Manhattan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, and Survival.
27. Amendment and Modification
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.