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, which are delivered to you through their (Widgix) Site). 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. In this Agreement:
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;
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;
4. “Staff” includes employees and sub-contractors;
5. “SurveyGizmo” means Widgix’s online survey tool, hosted by Widgix, used to facilitate Customer’s use, collection, integration and reporting of online data surveys;
6. “(W)we” “our” and “us” means SurveyShack.com Limited of Mountbatten House, Fairacres, Dedworth Road, Windsor, Berkshire, SL4 4LE, United Kingdom;
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;
8. “Personal Data” shall have the same meaning as defined in the Data Protection Act;
9. “Process/Processing” shall have the same meaning as defined in the Data Protection Act;
2. Paragraph headings are merely a guide and are not intended to be part of this agreement.
2. The Agreement
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.
3. No variations to this Agreement may be made unless made in writing and signed by you or your authorised representative and a director of SurveyShack.com Limited.
4. “Agreement” means:
1. amendments to these terms and conditions (made in accordance with clause 2.3);
2. the proposal;
3. documents explicitly referred to in the proposal;
4. these terms and conditions.
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.
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
2. A proposal and/or an estimate does not amount to a contractual offer.
3. All prices specified in the proposal and/or estimate are exclusive of VAT or other applicable taxes unless specifically stated.
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.
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.
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
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.
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.
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. 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).
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
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.
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.
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.
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. If you fail to pay the whole or part of any sum you owe us by the time it becomes due for payment;
1. we reserve the right to suspend your username and prevent you from having access to the Software and/or website;
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;
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.
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.
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
1. In consideration of the price paid for the Services, we grant you a non-exclusive, non-transferable, revocable, licence to use the Software.
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.
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.
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.
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. 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;
1. obtain a licence or settlement of the Claim (at no cost to you);
2. perform our obligation in a different way to avoid the Claim;
3. cancel the Agreement.
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. Sub Contracting
1. We may sub-contract any of the services we have agreed to provide under this Agreement at our discretion and without prior notification to you.
2. Where we have sub-contracted any services to a third party specified by you, we shall not be liable for any non-performance of that third party’s obligations, and for the purposes of this agreement, any delay or hindrance caused by or attributable to that third party shall be considered to have been caused by you.
8. Third Party Recommendations and Statements
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.
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
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
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.
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.
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.
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.
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.
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.
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
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
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.
2. Any maintenance requests must be made through the existing support system by sending an email to email@example.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.
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.
4. We will provide you with access to an electronic manual for the Software.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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).
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.
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. 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.
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.
2. We may at any time assign or subcontract all or any of our rights or obligations under this agreement.
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
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).
2. Confidential Information shall exclude any such information which:
1. is known to the public (through no act or omission of the receiving party in violation of this Agreement);
2. is lawfully acquired by the receiving party from an independent source having no obligation to maintain the confidentiality of such information;
3. was known to the receiving party prior to its disclosure under this Agreement;
4. was or is independently developed by the receiving party without breach of this Agreement; or
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.
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:
1. take at least those measures that it takes to protect its own most highly confidential information
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
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.
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
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. 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.
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.
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:
1. the presentation of a bankruptcy or winding-up petition against the other party;
2. an encumbrancer takes possession or a receiver is appointed over all or any part of the other party’s assets;
3. the commencement of any winding-up process (other than for the purposes of reconstruction or amalgamation);
4. the entry into or proposal of any form of voluntary arrangement or composition with the other party’s creditors;
5. the other party becomes subject to an administration order;
6. anything analogous to any of the foregoing in any jurisdiction; or
7. the other party ceases or threatens to cease to carry on business.
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.
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.
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.
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.
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.
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.
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.
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
1. The Agreement shall be governed by, and construed in accordance with, the law of England and Wales.
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
1. Each Party to this Agreement agrees to comply at all times with their respective obligations under the Data Protection Act in relation to all Personal Data that is Processed by it in the course of performing its obligations under this Agreement, including maintaining a valid and up to date notification and obtaining relevant consents from the subjects of any Personal Data, as required under the Data Protection Act.
2. You agree that we may process Personal Data on your behalf solely in connection with the provision of Services to you under this Agreement.
3. We shall, when acting as a data processor, Process Personal Data in accordance with the requirements of the seventh principle of the Data Protection Act as if we were a data controller and in a manner that enables you to comply with the Data Protection Act.
4. All personal data is acquired and stored according to the requirements of the EC data protection initiative. Where 3rd party service providers may be located outside the EC, all data handling will be undertaken in full compliance with the EU-US Safe harbour initiative.
5. We shall comply with all instructions given by you from time to time in relation to such Processing.
6. 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 reasonable steps to ensure the reliability of staff having access to Personal Data.
7. We will provide you with your questionnaire response data (including Personal Data, if required) in connection with the Services we provide to you.
8. We will not disclose any Personal Data to any third parties without your prior written consent.
9. You agree that we may provide third party partner companies with whom we work closely, with the questionnaire response data in an anonymised form which does not include Personal Data.
22. SurveyGizmo Software and Services 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.
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.
1. SurveyGizmo Services.
During the Term, and in accordance with these Terms, we will use reasonable commercial efforts to provide Customer access to and use of the Software and other related support and other services described in this Agreement (such access, use and support and other services are referred to, collectively, as the “SurveyGizmo Services”) in accordance with any specifications set forth in the Order Process. “Software” means Widgix’s online survey tool, hosted by Widgix, used to facilitate Customer’s use, collection and integration of online data surveys. The SurveyGizmo Services may not be used to exchange identification numbers issued by public authorities and specific to individuals (whether for social security, identity card, health records or any other purpose), passwords, banking, credit card, or any other financial information. We are under no obligation to provide extended customer service or consulting services as part of this Agreement.
2. Access Rights.
Subject to the terms and conditions of this Agreement, Customer is granted, during the Term, a non-exclusive, non-transferable right to access and use the Software and SurveyGizmo Services as set forth in Order Process, solely to assist Customer in the processing and analysis of Customer’s data. Widgix reserves all rights (including all intellectual property rights) in and to the SurveyGizmo Services not granted herein.
3.1 Customer agrees that it will not, and will not allow its directors, officers, employees or agents to: (a) copy, reproduce, modify, sell, lease, sublicense, market or commercially exploit in any way the SurveyGizmo Services or Software or any component thereof other than as expressly agreed to in this Agreement; or (b) disclose or grant access the SurveyGizmo Services or any component thereof to any third party.
3.2 Customer agrees: (a) to use the SurveyGizmo Services in a manner that is ethical and in conformity with community standards made available from time to time; (b) to respect the privacy of other users (Customer shall not seek data or passwords belonging to other users, nor will Customer or its Users modify files or represent themselves as another user unless explicitly authorized to do so by that user); (c) to respect the legal protection provided by copyright law, trade secret law, or other laws protecting intellectual property; (d) to accept notifications of service changes and payment information referred to as ‘operational emails’; and (e) to explicitly consent to receive commercial email and similar offers presented through the Software system or via email.
3.3 Any involvement in unsolicited commercial email campaigns, commonly known as SPAM is strictly prohibited. Customer agrees and warrants that (a) it will not engage in any spamming activity in its use of SurveyGizmo Services and (b) its use of the SurveyGizmo Services will not violate any spamming, junk mail or other related laws or regulations prohibiting or discouraging unsolicited e-mail.
3.4 Any security auditing or scanning of any of the SurveyGizmo websites, applications, networks, or databases is strictly prohibited.
3.5 Customer shall not use the SurveyGizmo Service to upload, store, post, email, transmit or otherwise make available any content that infringes any intellectual property rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, sexually explicit, threatening, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), knowingly false or misleading (including impersonation of any person or entity with which you are not affiliated), or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited as set out in any acceptable use policy we make available from time to time.
In consideration for providing the SurveyGizmo Services, Customer shall pay to SurveyShack the fees set out in Order Process (“Fees”), without any set-off or deductions of any kind, as such Order Process may be amended from time to time in accordance with the terms hereof. We shall have the right to increase the Fees at any time on notice to you in accordance with Section 18.9 (although no such increase will apply to SurveyGizmo Services already provided to you). Any increase in Fees shall take effect at the time stated in our notice to you. Customer’s continued use of the Services shall be deemed acceptance of any new Fees. Payment for the Fees shall be due and payable as specified in Order Process. Due to the nature of the technologies and Internet stability, service interruptions may occur. No full, partial, or prorate refunds will be made as adjustment for any such service interruption. Customer hereby acknowledges that changes in the nature of the SurveyGizmo Services that may be offered under these Terms that are beyond the control of SurveyShack and do not constitute grounds for any full or partial refund of any advance fees paid.
The Fees are exclusive of all taxes and Customer shall pay (and SurveyShack shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with this Agreement, including, without limitation, any sales, use, goods and services, value-added and personal property taxes on any payments due to SurveyShack in connection with the SurveyGizmo Services provided hereunder, except for tax based solely on the net income of SurveyShack.
6. Response Data.
The parties agree that all disclosure and use of survey information, responses thereto and 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 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 to whom Customer sends surveys. Title to and ownership of all intellectual property rights of the Response Data shall remain exclusively with Customer.
7. Widgix Ownership
Customer acknowledges and agrees that Widgix (and/or its licensors) shall retain and own exclusively all right, title and interest and all intellectual property rights (including copyrights, trade secrets, trade-marks and patent rights) in and to the Software, SurveyGizmo Services and all materials used by Widgix to provide the SurveyGizmo Services (collectively, the “SurveyGizmo Materials”) and all copies thereof and customizations and modifications thereto, and that nothing herein transfers or conveys to Customer any ownership right, title or interest in or to the SurveyGizmo Materials or to any copy thereof or any license right with respect to same not expressly granted herein. Customer agrees that it will not, either during or after the termination of this Agreement, contest or challenge the ownership of the intellectual property rights in the SurveyGizmo Materials by Widgix.
8. Access to SurveyGizmo Services
Customer is responsible for obtaining all hardware, software and services, which are necessary to access the SurveyGizmo Services including without limitation, all computers, web browsers, and services provided by an Internet service provider. We cannot and do not guarantee that any content of the SurveyGizmo Services will be free from viruses and/or other code that may have contaminating or destructive elements. It is your responsibility to implement appropriate IT security safeguards (including anti-virus and other security checks) to satisfy your particular requirements as to the safety and reliability of content.
9. Customer Personnel.
Customer is responsible for establishing throughout the Term the designated point of contact to communicate with SurveyShack.
10. Right to Modify the SurveyGizmo Service
Widgix may from time to time, in its sole discretion, change some or all of the functionality or any component of the Software and SurveyGizmo Services or make any modification for any purpose including but not limited to improving the performance, service quality, error correction or to maintain the competitiveness of the SurveyGizmo Services.
11. Confidential Information
11.1 Each party (“Recipient”) acknowledges that confidential information (including information such as contact details for survey respondents, survey information, Response Data, trade secrets and confidential technical, financial and business information) of the other party (“Discloser”) may be exchanged between the parties 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 purposes of this Agreement and as 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.
11.2 Notwithstanding Section 11.1, Recipient may use or disclose the Confidential Information to the extent that such Confidential 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 so long as Recipient provides Discloser with notice of such requirement prior to any such disclosure (to the extent permitted by law) and takes steps reasonably necessary to maintain the information in confidence.
11.3 Recipient shall, and shall cause all of its employees, contractors and consultants who have access to Confidential Information of Discloser to, safeguard and maintain the Confidential Information of Discloser in strict confidence and shall not, and shall cause its 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 employees, contractors and consultants who have a need to access such Confidential Information in order to enable Recipient to 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 SurveyGizmo Services, and (b) use Widgix’s Confidential Information to create any computer software or documentation that is substantially similar to the Software.
12. Right to Perform Services For Others
Customer recognizes that Widgix (and its reseller SurveyShack) is in the business of providing computer and information technology services and may perform services for other persons similar to Customer. Subject to the confidentiality obligations pursuant to Section 11, we retain the right to and nothing shall prevent us from using any ideas, concepts, methods, processes, know-how, organization, techniques or any software, including the SurveyGizmo Materials, in providing any services to any third party.
13. Warranty Disclaimer
13.1 Customer understands that we do not guarantee or predict any type of profit or response from the SurveyGizmo Services. All services are provided to Customer with reasonable care and skill. No other conditions, warranties or other terms apply to any SurveyGizmo Services under this Agreement except to the extent they are expressly set out in this Agreement. In particular no implied conditions, warranties or other terms of any kind or nature, relating to satisfactory quality or fitness for purpose will apply to anything supplied under this Agreement. Customer acknowledges and agrees that Widgix and SurveyShack make no direct warranty of any kind to customer under this Agreement. If Widgix or its reseller SurveyShack breaches its obligation to provide the SurveyGizmo Services with reasonable care and skill, the Customer must notify SurveyShack as soon as possible. The Customer must give us a reasonable time to fix the problem without additional charge to the Customer. If we are able to do this within a reasonable time, this shall be the Customer’s sole and exclusive remedy in relation to such breach and we will, subject to clause 14.1, have no other obligation or liability in relation to such breach.
13.2 Widgix or SurveyShack does not represent or warrant that: (a) the Surveygizmo Services will meet Customer’s business requirements; (b) the Surveygizmo Services will be error-free or uninterrupted or that the results obtained from the use of the Surveygizmo Services or Software will be accurate or reliable; or (c) all deficiencies in the Surveygizmo Services can be found or corrected. Further, the Surveygizmo Services may be interrupted or unavailable for the purposes of performing maintenance or upgrades.
13.3 Widgix or SurveyShack will not be responsible for: (a) service impairments caused by acts within the control of Customer or any User; (b) inoperability of specific Customer applications or equipment; (c) inability of Customer to access or interact with any other service provider through the internet, other networks or users that comprise the internet or the informational or computing resources available through the internet; (d) interaction with other service providers, networks, users or informational or computing resources through the internet; (e) services provided by other service providers; or (f) performance impairments caused elsewhere on the internet.
13.4 By using SurveyGizmo Services, you understand and agree that you represent and warrant to us that you are in compliance with all applicable laws in regards to using the Site and SurveyGizmo Services.
14. Limitation of Liability
14.1 Nothing in this Agreement shall limit or exclude our liability for: (a) death or personal injury caused by our negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be excluded under applicable law, even if any other term of this Agreement would suggest that this might otherwise be the case.
14.2 Subject to Section 14.1, we and our subsidiaries, affiliates, officers, employees, agents, and partners shall not be liable to you (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any:
(a) loss of profit;
(b) loss of goodwill;
(c) loss of business opportunity;
(d) loss of data;
(e) loss of savings;
(f) loss or waste of management time; or
(g) indirect, special or consequential loss.
14.3 Subject to Sections 14.1 and 14.2, our (and our subsidiaries, affiliates, offices, employees, agents and partners’) aggregate liability arising from or in connection with this Agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) shall be limited to: (a) where you are not paying to receive the SurveyGizmo Services, to £100; or (b) where you are paying to receive the SurveyGizmo Services an amount equal to 100% of the Fees payable by you in the relevant Contract Year; or (ii) £2000. “Contract Year” for these purposes means the relevant twelve-month period starting on the date we begin providing the SurveyGizmo Services or an anniversary thereof (as appropriate). Where liability arises out of an event or series of connected events which span more than one Contract Year, all such liability shall be deemed to have occurred in the Contract Year in which the event first occurred, or in which the first of a series of connected events occurred, as appropriate.
14.4 Please note that downgrading your account may result in the loss of content, features, or capacity of your account. SurveyShack does not accept any liability for any such losses.
You agree to defend, indemnify and hold harmless SurveyShack, Widgix its affiliates, officers, directors, employees, and agents, for any losses, costs, liabilities and expenses (including reasonable legal fees) relating to or arising out of your connection to or use of the SurveyGizmo Services, including but not limited to any breach by you of these Terms and any claims arising from the content you submit, post, transmit or make available through the SurveyGizmo Services.
16. Term and Termination
16.1 Term. This Agreement will commence on the date you start accessing or otherwise using the SurveyGizmo Services and shall continue either annually unless terminated earlier in accordance with this Section (“Term”).
16.2 Termination. Customer may terminate this Agreement at any time for any reason by providing written notice to SurveyShack. Customer shall not be entitled to any refund of the Fees paid and shall remain liable for any Fees previously due if it exercises its right to terminate for convenience in accordance with this Section. SurveyShack reserves the right to suspend or terminate your account and use of the SurveyGizmo Services and the Software, at any time, without notice, for any reason, at our sole discretion, including but not limited to the following:
(a)if any invoices under this Agreement are unpaid;
(b)phishing attempts or schemes;
(c)if Customer is involved in the sales and/or distribution of the following materials:
(ii)Ponzi or Pyramid Schemes;
(d)sale and/or distribution of any illegal materials; or
(e)breach of these Terms, including policies or guidelines set forth elsewhere; and
(f)conduct that SurveyShack believes is harmful to other users of the SurveyGizmo Services or the business of Widgix or other third party information providers (including slowing down the servers and affecting other users)
16.3 Effect of Termination. Except to the extent agreed to in writing by the parties, upon the termination of this Agreement:
(a)SurveyShack shall be entitled to immediately cease providing the SurveyGizmo Services;
(b)SurveyShack shall be entitled to immediately terminate Customer’s access to the SurveyGizmo Service;
(c)Customer shall forthwith pay to SurveyShack all amounts owing under this Agreement on the date of termination;
(d)the rights granted under Section 2 will automatically terminate; and
(e)further, Customer agrees that SurveyShack (or Widgix) shall not be liable to Customer or any third party for any termination of your access to the SurveyGizmo Services. Widgix reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the SurveyGizmo Services (or any part thereof) with or without notice. Customer agrees that Widgix or SurveyShack shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the SurveyGizmo Services.
16.4 Return of Confidential Information. Upon the termination of this Agreement for any reason whatsoever, each party may request of the other that all documents, information, data and/or software however recorded, which contain any of the other’s Confidential Information be returned, provided that the party shall be entitled to charge a reasonable fees and materials charge for doing so. If no request is received for the return of Confidential Information within 30 days of the termination of this Agreement, the Confidential Information shall be destroyed within a reasonable time thereafter and shall not be used for any purpose whatsoever. While Widgix uses reasonable precautions to ensure your database is secure and protected, Customer understands and agrees that Widgix or SurveyShack is under no obligation to export, extract, retrieve or ‘massage’ your database for Customer except through our EXPORT function.
16.5 Survival.The parties hereto agree that the provisions hereof requiring performance or fulfilment after the expiry or earlier termination of this Agreement shall survive such expiry or earlier termination. The provisions of this Agreement relating to ownership, confidential information, warranty disclaimer, indemnification and limits of liability shall survive the expiration or termination of this Agreement.
17. Independent Contractor
SurveyShack employees shall not be deemed at any time to be employees or servants of Customer and SurveyShack is and shall remain an independent contractor for all purposes. Unless otherwise agreed to in writing, SurveyShack does not undertake to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer’s business or operations.
18.1 Notice.Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, 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 2 days after valid transmission by email. Notices will be sent to a party at its address set forth in the Order Process or such other address as that party may specify in writing pursuant to this Section. Customer agrees to provide us with such other information relating to your use of the SurveyGizmo Services as we deem necessary or desirable. Customer shall notify us if Customer’s address, email address, telephone number, or billing information changes.
18.2 Force Majeure. If Widgix’s or SurveyShack’s performance under this Agreement, or 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 Widgix or SurveyShack, we shall be excused from such performance to the extent of such prevention, restriction or interference.
18.3 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.
18.4 Assignment.Customer may not assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without our prior written consent. SurveyShack may assign its rights and obligations under 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, reorganization or otherwise to any of its affiliates (being a subsidiary or holding company of SurveyShack or any subsidiary of any holding company of SurveyShack). 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.
18.5 Trademark Information.Unless expressly requested in writing, we reserve the right to have fair use of your company or organization’s name and logo in our promotional material.
18.6 Governing Law.This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the courts of the England for any legal action arising out of this Agreement or the performance of the obligations hereunder or thereunder, but SurveyShack and Widgix is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its intellectual property rights.
18.7 Counterparts.This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
18.8 Headings.The subject headings of the articles and sections are for convenience only and shall not affect the construction or interpretation of any of its provisions.
18.9 Entire Agreement; Waiver. 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 although nothing in this Section shall operate to exclude any representation made by a party fraudulently. Each party acknowledges that, in entering into this Agreement, it has not relied on any statement, representation or communication not expressly set out in the Agreement. SurveyShack reserves the right to change these Terms as needed and as shall be updated on our website and www.surveyshack.com/policies-terms-and-conditions/ including, but not limited to, the right to change our subscription rates at any time. These terms were last updated on Wednesday 20th September 2017. Use of the SurveyGizmo Services by Customer after any such changes constitutes acceptance of any new terms and conditions.
If you do not agree to the new terms and conditions, you may terminate this agreement in accordance with our cancellation policy. For changes in subscription rates, we will use reasonable commercial efforts to give thirty (30) days’ notice prior to changing subscription rates. 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. In the event of a conflict between this Agreement and any other terms contained on our website, this Agreement shall control. No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement. This Agreement sets forth the general terms and conditions applicable to all SurveyGizmo Services provided to Customer and no terms or conditions proposed by either party, including any purchase order submitted by Customer, shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. Customer further understands and agrees to hereby waive any purchase order terms and conditions not expressly accepted in writing by signature representatives of both parties. Customer also understands and agrees that references to purchase orders on any services invoices or otherwise shall not constitute SurveyShack’s acceptance of purchase order terms and conditions for the SurveyGizmo Service. To the extent of any conflict between the provisions of this Agreement and the provisions of any purchase order, the provisions of this Agreement shall govern.