Polling Services - Terms & Conditions
Last Updated: June 5, 2017
TERMS AND CONDITIONS
(a) “Confidential and Proprietary Information” means any information and/or data disclosed by the Disclosing Party to the Receiving Party (each, as defined in Section 5 below), written or verbal, furnished in any form and by any means (whether or not expressly designated Confidential and Proprietary) of a confidential or sensitive nature, including, but not limited to proprietary, trade, technical, development, marketing sales, operating, performance, costs, know how, business and process information, computer programs or techniques, and all other information or materials which would reasonably be considered to be confidential given the nature of the information and which is the subject of efforts that are reasonable under the circumstances to maintain its confidentiality.
(b) “icitizen Material” means (i) icitizen’s methodologies, including sampling, research, and methods of process or questioning; research products, sample or panel databases; systems of analysis, questions or questionnaire forms (unless provided by Company or developed by icitizen specifically for Company); (ii) computer software or programs, models or systems, and analysis used in icitizen’s performance of the Services; (iii) any Intellectual Property Rights in any of the foregoing (i) or (ii); and (iv) any and all Confidential Information of icitizen disclosed to Company in connection with the Services.
(c) “Data” means any data and information derived, developed or produced as a result of the Services. Data shall not include any personally identifiable information.
(d) “Deliverables” means all deliverables developed, prepared, designed and/or created by icitizen at the request, and at the expense of, Company pursuant to this Agreement.
(e) “Intellectual Property Rights” means, on a worldwide basis, any and all: (i) rights associated with works of authorship, including copyrights, moral rights, database rights and mask works; (ii) trademarks; (iii) trade secret rights; (iv) patents, designs, algorithms and other industrial property rights; (v) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vi) registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
(f) “Company Material” means (i) all pre-existing software, tools, designs, reports, algorithms, analysis, documentation, and other material developed by or for Company outside of this Agreement as may be necessary to provide the Services hereunder; (ii) any routines, tools, methodologies, processes or technologies created, adapted or used by Company in its business generally; (iii) any data, specifications, or other materials or information supplied by Company to icitizen in connection with the Services or this Agreement; and (iv) any and all Confidential Information of Company disclosed to icitizen in connection with this Agreement; together with all associated Intellectual Property Rights in connection with any of the foregoing.
(g) “Third Party Material” means any software, tools, designs, documentation, content, data or other material of any third party.
(a) icitizen Services. icitizen will provide those services described in one (1) or more Statements of Work or Subscription Agreement, (the "Services") in accordance with the terms and conditions in this Agreement. icitizen may provide the Services with the assistance of Third Party Material and subcontractors (“Subcontractors”). icitizen may disclose Company’s Confidential and Proprietary Information to Subcontractors who will use icitizen’s Confidential and Proprietary Information solely for the purpose of providing the Services.
(b) Company Materials. Company shall provide to icitizen the Company Material required by icitizen to perform the Services and as may be described in any Statement of Work or Subscription Agreement.
(c) Changes. If, at any time, either party desires to modify an applicable Statement of Work, the requesting party will present a written request to the other party describing such modifications (each such request is a "Change Order"). The other party will promptly review each such Change Order and determine and advise the requesting party, in its reasonable discretion, whether such Change Order is acceptable, can be accomplished by icitizen, and whether the performance of such Change Order will increase the costs and/or delay the original schedule for performing the Services. The parties will accept or modify any Change Order in writing and any accepted Change Order will be deemed to amend and become part of the applicable Statement of Work and icitizen will perform the Services in accordance with such mutually agreed amended Statement of Work. Neither party shall be responsible for any changes in any Statement of Work unless mutually agreed upon in writing.
3. Fees and Expenses.
(a) Fees. Company agrees to pay icitizen for the Services in accordance with the fee schedule set forth in the applicable Statement of Work. Fees shall be billed to Company on a monthly basis, in arrears, or as otherwise set forth in the Statement of Work. Company will pay invoices in full, in U.S. currency, within thirty (30) days of the invoice date. Company will be responsible for, and will promptly pay, all taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement or Company’s receipt of Services, except for taxes based on icitizen’s net income.
(b) Expenses. If applicable to a Statement of Work, Company will reimburse icitizen for travel and incidental expenses that are incurred in connection with the provision of the Services. All reimbursements are to be made within thirty (30) days of the invoice date.
4. Term & Termination.
(a) Term. The “Term” of this Agreement will commence on the Effective Date set forth on the Cover Page and will remain in effect until the expiration of all Statements of Work or Subscription Agreement hereunder, unless otherwise terminated in accordance with this Agreement. The term of each Statement of Work or Subscription Agreement shall be as set forth on the applicable Statement of Work or Subscription Agreement.
(b) Termination. If either party materially breaches a material provision of this Agreement or an applicable Statement of Work or Subscription Agreement, the other party may terminate this Agreement upon fifteen (15) days’ prior written notice specifying the breach, and this Agreement shall automatically terminate at the end of such period unless the breach is cured within such period. Termination of this Agreement and any related and supporting Statement of Work or Subscription Agreement will not limit either party from pursuing any other remedies available, including injunctive relief, nor will termination relieve Company of its obligation to pay all charges for work performed prior to such termination. The parties’ rights and obligations under Sections 4(b), 5, and 6 - 10, plus all accrued or continuing rights to payment, will survive the termination of this Agreement.
5. Confidential and Proprietary Information.
(a) Company and icitizen Confidential and Proprietary Information. Each party (the “Receiving Party”) will keep confidential and not disclose to any other third party or use (except as expressly authorized by this Agreement) any Confidential and Proprietary Information obtained from the other party (the “Disclosing Party”). All (i) Company Material shall be deemed the Confidential and Proprietary Information of Company; and (ii) icitizen Material shall be deemed the Confidential and Proprietary Information of icitizen. Confidential and Proprietary Information shall not include any information that the Receiving Party can show: (A) at the time of disclosure is publicly available or becomes publicly available through no act or omission of the Receiving Party, (B) is or has been disclosed to the Receiving Party by a third party who is not under, and to whom the Receiving Party does not owe, an obligation of confidentiality with respect thereto, or (C) is or has been independently acquired or developed by the Receiving Party without access to the Disclosing Party’s Confidential and Proprietary Information. The Receiving Party may disclose Confidential and Proprietary Information of the Disclosing Party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Receiving Party gives prompt notice to the Disclosing Party, and shall reasonably cooperate with the Disclosing Party in seeking a protective order or other appropriate remedy to curtail such disclosure. If such actions by such party are unsuccessful, or the Disclosing Party otherwise waives its right to seek such remedies, the Receiving Party shall disclose only that portion of the Confidential and Proprietary Information which it is legally required to disclose.
(b) Respondent Privacy and Confidentiality. Each party acknowledges and agrees that the Deliverables may include identifying information about survey respondents collected by icitizen (“Survey Respondent Data”). Each party agrees that it shall not publish or otherwise distribute any Survey Respondent Data, including any video or audio recordings (such as those produced as a result of any online community platform, chat rooms, and telephone surveys or otherwise), for the purposes of identifying the respondents. The Survey Respondent Data shall only be used for analyzing and reporting data at the aggregate level, and calibrating sample weights for statistical purposes.
(a) Ownership by Company. As between icitizen and Company, Company shall own all Intellectual Property Rights in and to all Company Material, subject to the rights and licenses granted below. Company grants icitizen and its Subcontractors a nonexclusive, royalty-free, worldwide right and license during the term of this Agreement to use the Company Material for the purpose of providing Services to Company in accordance with this Agreement and as otherwise set forth in an applicable Statement of Work or Subscription Agreement. icitizen acknowledges and agrees that Company will solely own and have title to all Deliverables and Intellectual Property Rights arising therefrom. icitizen hereby assigns to Company all right, title and interest in and to such Deliverables.
(b) Ownership by icitizen. icitizen shall own all icitizen Material. Company acknowledges that icitizen provides services similar to those provided under this Agreement to third parties and icitizen may be providing deliverables to third parties that are similar to the Deliverables being provided to Company, provided that such other deliverables shall not contain any Company Material or Company Confidential and Proprietary Information.
(c) Data. Rights in and to Data and any Survey Respondent Data shall be specified in an applicable Statement of Work or Subscription Agreement.
7. Representations and Warranties.
(a) Representation and Warranty. icitizen represents and warrants that the Services will be performed in a professional and workmanlike manner consistent with industry standards.
8. DISCLAIMER OF WARRANTIES. THE SERVICES AND DELIVERABLES ARE PROVIDED “AS-IS” AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, ICITIZEN MAKES NO (AND DISCLAIMS ALL) PROMISES, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES AND DELIVERABLES, AND ANY DATA, INFORMATION, RESULTS, OR OTHER MATERIAL FURNISHED TO COMPANY HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF SUCH ITEM OR ITEMS, DATA ACCURACY, TITLE, NON-INFRINGEMENT, OR THAT THE RESULTS THAT MAY BE OBTAINED FROM THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE.
9. Limitation of Liability. EXCEPT FOR BREACHES OF SECTION 5 OR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS OR MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONTINGENT, PUNITIVE, EXEMPLARY, RELIANCE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) NEITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE AMOUNT OF FEES PAID BY COMPANY TO ICITIZEN DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, UNDER THE APPLICABLE STATEMENT OF WORK OR SUBSCRIPTION AGREEMENT.
10. Indemnification. icitizen shall defend Company and pay damages awarded or settled in court arising out of or in connection with any third-party claims that the Deliverables infringe a United States registered copyright or patent, provided that: (a) Company gives icitizen prompt written notice of the claim; (b) icitizen is given immediate and complete control over the defense and/or settlement of any such claim; (c) Company does not prejudice in any manner icitizen’s conduct of such claim; and (d) the alleged infringement is not based upon the use of the Deliverables in a manner not expressly authorized or otherwise prohibited by this Agreement, or in a manner for which the Deliverables were not designed. If a final injunction is obtained against the use of any part of the Deliverables by reason of infringement of a U.S. registered copyright or patent, icitizen may, at its option and expense, either use commercially reasonable efforts to secure the right to continue using the infringing Deliverable; or use commercially reasonable efforts to replace or modify the Deliverable to make it non-infringing; or, if neither is commercially feasible, icitizen may terminate the Agreement and refund to Company the portion of the prepaid Fees applicable to that portion of the Deliverable which is infringing. The foregoing states icitizen’s entire obligation and liability with respect to the infringement of any property right.
(a) Relationship of Parties. For all purposes under this Agreement, each party will be and act as an independent contractor of the other and will not bind or attempt to bind the other to any contract, and nothing contained herein shall be deemed to constitute either party as an employee, partner, joint venturer, or agent of the other party. Nothing contained herein shall prevent Company from contracting or working with any third party.
(b) Governing Law; Attorneys’ Fees. This Agreement, and all matters arising out of or relating to this Agreement, will be governed by the internal laws of the State of Delaware (irrespective of choice of law principles). In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.
(c) Notice. All notices, including notices of address change, required to be sent hereunder will be in writing and delivered personally, sent by confirmed facsimile, by confirmed e-mail or other reliable electronic messaging service, by certified mail postage pre-paid and return receipt requested, or by a nationally recognized express delivery service if sent to the address listed in this Agreement. All notices will be effective upon receipt.
(d) Severability. If any provision of this Agreement is held invalid or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full effect and enforceable.
(e) Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, except that either party shall be entitled to assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise) without the prior written consent of the other party provided that this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
(f) Waiver. No waiver of any breach of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
(g) Amendment. Any modifications of this Agreement must be in writing signed by a duly authorized representative of each party.