IMPORTANT – CAREFULLY READ ALL TERMS AND CONDITIONS BELOW (“AGREEMENT”) PRIOR TO ACCESSING THE SERVICES. THIS AGREEMENT GRANTS A NONEXCLUSIVE LICENSE TO ACCESS CERTAIN SERVICES PROVIDED BY DISQO, INC. (“DISQO”). IT ALSO IMPOSES CERTAIN RESTRICTIONS ON THE ACCESS TO AND USE OF THE SERVICES. BY CHECKING THE BOX OR OTHERWISE AGREEING TO THE TERMS AND CONDITIONS AND/OR BY USING THE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THE TERMS HEREIN, (B) REPRESENT THAT YOU ARE NOT PURCHASING THE SERVICE FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, (C) REPRESENT THAT YOU ARE OF LEGAL AGE AND ARE OTHERWISE FULLY ABLE AND COMPETENT TO ENTER INTO A BINDING AGREEMENT AND HAVE AUTHORITY TO DO SO, AND (D) ACCEPT THIS AGREEMENT AND AGREE THAT THE LEGAL ENTITY YOU REPRESENT (“YOU” OR “CLIENT”) SHALL BE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT OR THE TERMS HEREIN, DO NOT ACCEPT THIS AGREEMENT OR ACCESS THE SERVICES. CLIENT, YOU OR DISQO SOMETIMES ARE COLLECTIVELY REFERRED TO HEREIN AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.”
This Agreement governs the provision and use of the DISQO Experience Suite service provided by DISQO (“Service(s)”). Subject to the terms and conditions of the Agreement, DISQO agrees to make commercially reasonable efforts to provide Client with the Services Client orders online. Client may order the Service through the DISQO-provided link, by clicking “Order”, “Purchase”, “I Agree” or the like (“Online Order”). DISQO reserves the right to accept or reject each Online Order in its sole discretion.
General Description of Services and Available Plans:
The Service, as further described below, generally allows an employee of Client to whom Client has provided access credentials (“Authorized User”) to submit Tests (as defined below) in order to help Client gauge respondent reaction to various Client content or other materials. Through the online process, You may purchase access to one or more of the below Service plans, each of which provides You with up to a number of Completes which expire if not used in the listed time period (“Plan(s)”)
Service and Plan Specific Terms:
You may purchase one or more of the Plans listed above online through an Online Order. The Agreement will enter into force on the date You purchase the Services online, and will terminate upon the earlier of (a) the exhaustion of the Completes ordered, and (b) three months from the Online Order date (“Term”). This Agreement may be earlier terminated as provided for herein. Any access to the Services terminates upon termination or expiration of the Term.
Plans purchased online may only be paid using a credit card. You authorize DISQO (or its third party processor) to bill your payment instrument once You order via an Online Order; payment must be made upfront, upon the Online Order. You are responsible to provide and maintain valid and updated credit card information or other payment information. If your payment instrument fails, your access to the Services will be terminated. You are responsible for all taxes associated with the Services other than U.S.-taxes based on DISQO’s income.
Service begins as soon as your initial payment is processed. Your payments are non-refundable and your service will continue until the end of the Term. In addition to any other available remedies, DISQO may terminate this Agreement and your access to the Service if you violate any of the terms, conditions and/or obligations of this Agreement.
Client shall obtain all necessary licenses, rights, consents, and permissions as needed to allow DISQO to use the information and materials You provide to DISQO or that DISQO collects as required by Client for the Services.
Client shall not use the Services, or any aspect thereof for any purpose, or in any way, (a) prohibited by any applicable laws, rules, regulations, orders and decrees of governmental authorities (“Applicable Laws”), (b) that infringes or misappropriates any third party’s intellectual property rights or violates any personal or privacy rights; or (c) in any manner that may disable, impair, damage or interfere with any of DISQO’s hardware, software, applications, proprietary data, and intellectual property rights. Client shall not introduce into the Services or any DISQO software, system or network, any viruses, Trojan horses, trap doors, worms, cancelbots or other computer programming routines or software intended to damage, interfere with, or harm any system, data or personal information. Client shall perform its obligations under the Agreement in compliance with all Applicable Laws.
Client shall not (a) directly or indirectly contact or attempt to contact or communicate with any potential or actual survey respondents or any other DISQO panel members or members of the Survey Junkie community (“DISQO Panel Members”), (b) collect or attempt to gain any personal data, personal information or any other information from any DISQO Panel Members, (c) utilize any panel routing technology or otherwise reroute or redirect any DISQO Panel Members, or (d) use any tracking or other technology to track or collect any data from any DISQO Panel Members. Except for general business contact information of its personnel, Client shall not provide to DISQO any information that identifies or can reasonably identify a particular individual (“Personal Information”).
Unless stated otherwise in the Online Order or herein, Client may authorize any number of Authorized Users to conduct a Test via the Service, and may run two or more Tests concurrently. Only Authorized Users are permitted to access and use the Service. Client may not grant access to the Service to any third party. Client is responsible and liable for all activities of its Authorized Users, and all activities that occur under Client’s account. Client is responsible for ensuring the security of all user and administrator IDs and passwords for the Service.
Client is solely responsible for all telecommunication or Internet connections, and associated fees, required to access and use the Services, as well as all hardware and software. DISQO is not responsible for: (a) Client’s access to the Internet; (b) interception or interruptions of communications through the Internet; or (c) changes or losses of data through the Internet.
Client represents and warrants that it is not a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring access to or control of items under the Agreement, or with which DISQO is prohibited from doing business. Client further represents that the Services shall not be used in any way that would violate U.S. export controls or economic sanctions laws or regulations.
Client may use or have access to DISQO’s software, plug-ins, extensions, documentation or data related to the Services or upon which the Services are based and/or services (“Software”), as well as other proprietary information and data (including data of or relating to DISQO Panel Members), including methodologies, databases, analytical data, other aspects and technologies related to the Services, and other materials and intellectual property of DISQO (“DISQO Information”). DISQO is the exclusive owner of all rights, title and interest (including all intellectual property rights) in and to DISQO Information including the Software and Services, any enhancements thereto and any other materials provided to Client by DISQO.
During the Term, and subject to the terms herein, DISQO grants to Client a limited, non-sublicensable, revocable, non-exclusive and non-transferable license to access and use the Software and Services in the United States solely as necessary for the Services. Client shall not (i) decompile, reverse engineer, or disassemble the Software, Services, or any other related product or software of DISQO or (ii) adapt, modify, sublicense, rent, lease, resell for profit, distribute or create derivative works based on the Software, Services, or any other related product or software of DISQO. Client shall be responsible for any non-compliance by its employees or contractors or Authorized Users. DISQO may use, without limitation, any suggestions, comments or other feedback about the Services provided by Client. The license rights set forth in the Agreement are the only rights that DISQO is granting to Client under the Agreement. Notwithstanding anything stated to the contrary, DISQO is not transferring or assigning any rights of ownership, interest or title to Client under the Agreement.
Except as set forth herein, as between the Parties all consumer survey, survey responses, and other data and information collected by DISQO from DISQO Panel Members through the performance of and in connection with the Services (“Data”) shall be exclusively owned by DISQO.
Client may provide certain materials to DISQO for use in connection with DISQO’s provision of the Services, which may include Client Content, survey questions/design, survey criteria and/or other material or content (“Client Materials”). “Client Content” is any data uploaded, inputted or imported into the Service by Client; provided, however, this excludes any DISQO Information or Data. Client grants DISQO a license to host, display, save, store and otherwise utilize the Client Materials in connection with the Services and its obligations under the Agreement. Client represents and warrants that it owns or has the necessary permissions to use and authorize the use of Client Materials in connection with the Services. Client further represents and warrants that the Client Materials, and Client’s activities in connection with the use of the Services (a) shall not be deceptive, misleading, obscene, defamatory, illegal, or unethical, (b) shall not infringe any third-party intellectual property, privacy or other rights, and (c) shall comply with all Applicable Laws.
Either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if the other Party commits a material breach of the Agreement and does not cure such breach within thirty (30) days after receipt of written notice; provided that DISQO may terminate the Agreement without notice and opportunity to cure, if in DISQO’s opinion such termination is required to prevent any violation of law or is required by any court, governmental or regulatory authority. On termination of the Agreement for any reason, all licenses granted by DISQO under this Agreement shall immediately terminate. Those provisions set forth in the Agreement that by their nature are intended to survive termination or expiration of this Agreement shall so survive.
Client will indemnify, defend, and hold harmless DISQO and its affiliates and its and each of their directors, officers, employees and agents from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (i) any negligent, reckless, or intentionally wrongful act of Client or it’s assistants, employees, agents and/or Authorized Users (collectively, Client Parties”) under this Agreement; (ii) any breach by Client or it’s assistants, employees, agents and/or Authorized users (“Client Parties”) of the terms of this this Agreement; (ii) Client Parties use of the Services; (iii) any Client Materials, or other material, data, or information provided by Client Parties under this Agreement; or (iv) any violation or claimed violation of a third party’s rights (including intellectual, proprietary, privacy and publicity rights) under this Agreement.
THE SERVICES AND ANY DATA PROVIDED TO CLIENT ARE “AS-IS” AND WITH ALL FAULTS. DISQO MAKES NO, AND EXPRESSLY DISCLAIMS ALL, WARRANTIES OR REPRESENTATIONS OF ANY KIND TO ANY PERSON WITH RESPECT TO THE SERVICES OR OTHER DATA SUPPLIED THEREBY, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CLIENT ACKNOWLEDGES THAT DISQO SECURES INFORMATION FROM THE DISQO PANEL MEMBERS AND NEITHER DISQO NOR ANY OF THE DISQO PANEL MEMBERS OR OTHER RESPONDENTS WARRANT THAT THE INFORMATION WILL BE COMPLETE, ACCURATE OR ERROR FREE.
IN NO EVENT SHALL DISQO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. DISQO’S MAXIMUM AGGREGATE LIABILITY TO CLIENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO DISQO UNDER THE APPLICABLE ONLINE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE THE LIABILITY AROSE UNDER SUCH ONLINE ORDER
DISQO may temporarily suspend or discontinue the Services, with advance notice if practicable, at any time (a) if DISQO has reasonable cause to suspect that the Services are being used improperly or to commit fraud, (b) due to Applicable Laws, or (c) if DISQO reasonably believes such action is necessary to avoid a threat of or actual harm to DISQO, its clients, users, or any third party.
Each Party shall be and act as an independent contractor and not as partner, joint venture or agent of the other. DISQO shall be entitled to use or engage subcontractors for the performance of DISQO’s obligations under the Agreement to the extent such obligations would have been performed by DISQO hereunder; provided that DISQO shall remain at all times liable for the performance of each such subcontractor’s obligations hereunder.
The Agreement represents the entire understanding between DISQO and Client and supersedes and cancels all prior written or oral agreements, communications or other understandings relating to the subject matter of the Agreement. All waivers and modifications of this Agreement must be in a writing signed by both parties unless otherwise set forth herein; provided, however, that DISQO may update this Agreement without notice by posting such update on the website where the Agreement is displayed and such updated Agreement shall immediately apply to the extent Client continues to use the Services after the Agreement is updated on such website.
The Agreement may not be transferred or assigned, in whole or in part, by Client without the prior written consent of DISQO. DISQO may assign or transfer all or any of its rights or obligations under the Agreement without consent.
The Agreement, and any legal claim, suit, action or proceeding arising out of the Agreement, shall be governed by the laws of the State of California without reference to its conflict of laws rules or principles. In event of a dispute arising under the Agreement, each Party will make reasonable, good-faith efforts to resolve such dispute informally. All legal disputes arising from the Agreement shall be resolved in the Federal and/or state courts located in the county of Los Angeles, California, and each party irrevocably submits to the exclusive jurisdiction of the Federal or state courts located in the county of Los Angeles, California, and waives any objection based on improper venue or forum non conveniens.
Any provision of the Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the minimum extent necessary, without invalidating the remaining provisions of the Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
Except for Client’s payment obligations, neither Party shall be in breach by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to civil disturbances, epidemic, pandemic, hostilities, strike or lockout, terrorist attack, embargo, natural disaster, cyber-attacks, or any other circumstances or causes beyond a Party’s reasonable control.
All notices permitted or required under the Agreement must be written and sent by any internationally recognized overnight delivery service to Client at the address of Client as set forth on the Online Order and to DISQO (including a copy to DISQO Legal), at 400 N. Brand Blvd., Suite 600, Glendale, CA 91203.
Any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by an authorized officer of DISQO. Any purchase order, website, purchasing portal, or other instrument issued by Client shall be for Client’s administrative purposes only and any terms and conditions contained therein shall be of no force or effect even if signed or otherwise accepted or acknowledged by DISQO.
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