SurveyGizmo Services Agreement
This Services Agreement (this “Agreement”) is entered into by and between you and Widgix, LLC dba SurveyGizmo (“SurveyGizmo”, “we” or “us”) and, together with any documents expressly incorporated by reference in this Agreement, govern your access to and use of the Services (as defined below).
Please read this Agreement carefully before you access or use the Services. By clicking on the “READY? LET’S GET STARTED!” button, you accept and agree to be bound by this Agreement. If you do not agree to any of the terms or conditions of this Agreement, you must not access or use the Services and you must not click the “READY? LET’S GET STARTED!” button. In such case, any amounts already paid by you to us for the Services shall be refunded.
If you will be using the Services on behalf of an organization, you agree to the terms of this Agreement on behalf of that organization, and you represent that you have the authority to bind your organization to this Agreement. In such case, “you” and “your” as used in this Agreement refer to that organization.
- Services. During the Term (as defined in Section 15.1), we will provide you with access to and use of our hosted survey tool and other related support services described in this Agreement (collectively, the “Services”).
- 2.1 Free Services. If you register on our website for a free trial or no charge version of the Services (“Free Services”), we shall make those Free Services available to you free of charge until the earlier of (a) the end of the Term for which you registered to use the applicable Free Services, or (b) the start date of any Purchased Services (as defined below). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTION 12 (WARRANTIES AND DISCLAIMER) BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND.
- 2.2 Purchased Services. The Services are offered pursuant to a number of license types that offer varying features, usage limits and levels of support. The Services that you purchase on our website pursuant to one of these licensing models are the “Purchased Services.” Purchased Services exclude any Free Services or any other services made available to you free of charge. At any time, you may upgrade to an enhanced Services offering by paying the difference in Fees for such upgraded Purchased Services for the remainder of the then-current Billing Period (as defined in Section 5.3 below) and for subsequent Billing Periods for the remainder of the Term. You may downgrade to a lesser Services offering at any time, and the Fees associated with such lesser offering will begin to be applied on the first day of the subsequent Billing Period.
- Access Rights. Subject to your compliance with the terms and conditions of this Agreement, we grant to you and those users we authorize when you register for the Services (each, an “Authorized User”), during the Term, a non-exclusive, non-transferable, worldwide right to access and use the Services as set forth in this Agreement, for the purpose of collecting, processing and analyzing online data surveys. For the avoidance of doubt, you shall be responsible and liable for the acts and/or omissions of your affiliates, employees, consultants, Authorized Users and/or any other third-party users who access or use the Services under your account. Any act or omission by any such third-party user that would constitute a breach of this Agreement if such third-party user were a party to this Agreement shall be deemed a breach of this Agreement by you.
- Restrictions. You agree that you will not, and will not permit your affiliates, employees, consultants, Authorized Users or any third party to: (a) copy, reproduce, modify, sell, lease, sublicense, market, resell, distribute or commercially exploit in any way the Services or any component thereof other than as expressly permitted in this Agreement; (b) disclose or grant access to the Services or any component thereof to any party not designated by you as an Authorized User; (c) use the Services to exchange federal or state identification information, passwords, social security numbers, banking, credit card, or any other financial information; (d) use the Services in violation of any applicable law or regulation, including without limitation those regarding intellectual property rights and privacy rights; (e) engage in any spamming activity in any use of Services; or (f) violate any U.S or foreign spamming, junk mail or other related laws or regulations prohibiting or discouraging unsolicited e-mail. You agree that you and your Authorized Users will: (i) use the Services in a manner that is ethical and in conformity with SurveyGizmo’s community standards; (ii) respect the privacy of other users (i.e., you shall not seek data or passwords belonging to other users, nor will you modify files or represent yourself as another user unless explicitly authorized to do so by that user); and (iii) accept notifications of service changes, commercial email and similar offers presented through the Services or via email. The Services are of U.S. origin and may not be exported, re-exported, transferred, or used in violation of U.S. export law. The Services may include the export of your Information (as defined in Section below) outside of the U.S.; therefore you must ensure that any Information provided to SurveyGizmo does not contain any data that is controlled for export purposes by the U.S. or other applicable governments. You represent and warrant that no Authorized User shall be in or a citizen of any countries embargoed or sanctioned by the U.S. government.
- Fees; Payments.
- 5.1 Fees. In consideration for your use of the Services during the Term, you shall pay us the fees for your Purchased Services (“Fees”) without any set-off or deductions of any kind. Fees paid by you are non-refundable, except as required by law. All amounts due under this Agreement shall be indicated and paid in U.S. dollars only.
- 5.2 Fee Increases. We have the right to increase the Fees associated with any of the Services for which you have registered, provided that we give you written notice at least ten (10) days in advance of the Billing Period for which the increased Fees will begin to be applied.
- 5.3 Billing Periods. The Fees will be billed to you in advance on an annual basis (each, a “Billing Period”) using the billing method you select when you register for the Purchased Services. If you have saved your credit card information to your account, then in order to preserve continuity of service for you, we will automatically charge your credit card at the start of the new Billing Period for the next Billing Period, unless you instruct us otherwise prior to the start of such new Billing Period.
- 5.4 Credit Card Payments. When you pay for your Purchased Services with a credit card, the credit card information is transmitted directly to our third-party payment processor. The payment processor verifies the credit card. Fees may include payments required by third-party processors that verify your credit card information on our behalf.
- 5.5 Nonrefundable Fees. Due to the nature of technology and Internet stability, service interruptions may occur. No full, partial, or prorated refunds of Fees will be made as adjustment for any such service interruption. You hereby acknowledge that errors and interruptions that are beyond the control of SurveyGizmo do not constitute grounds for any full, partial or prorated refund of any Fees.
- Taxes. All amounts payable by you to us under this Agreement are exclusive of any tax, levy or similar governmental charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, sale or use of the Services or otherwise arising out of this Agreement, including without limitation all sales, use, excise, import or export, value added, governmental permit fees, license fees, and customs (collectively, “Taxes”). You are responsible for paying all Taxes, except that you shall have no liability for any income taxes assessed on us on amounts paid to us by you under this Agreement.
- Your Information; Respondent Information.
- 7.2 Security; Privacy; Use.
- (a) Security. We maintain industry standard administrative, physical, and technical safeguards for protection of the confidentiality, integrity, and availability of the Information.
- 7.3 Customer Representations and Warranties. You agree and warrant that (a) you have the necessary rights and licenses required to collect and provide the Information to us in connection with the Services, (b) you have obtained, from each of your customers, employees, contractors, Survey Respondents and other end users, appropriate and informed prior consent to the processing of their Respondent Information by us for purposes of providing the Services, and (c) your collection and use of the Information does not violate any intellectual property rights or privacy rights of third parties, confidential relationships, applicable privacy policies or other contractual obligations, or federal, state or local laws or regulations. You are responsible for the accuracy, quality and legality of, and the means by which you acquire, the Information, including any personally all actions with respect to personally identifiable information of your Survey Respondents (“Respondent Personal Information”). Without limiting the generality of the foregoing, you shall provide all notices to, and obtain any consents from, your Survey Respondents in connection with the transfer and processing of any Respondent Personal Information via the Services. You shall be solely responsible for ensuring that any processing of the Information via the Services does not violate any applicable laws or regulations. We will not be liable for any liabilities arising from your provision of the Information to us (including transmission of the Information over the internet or other network).
- Login Credentials; Account Information. When you register for the Services, you may be asked to create a password and other credentials that you will use to access your account (your “Login Credentials”). You must safeguard your Login Credentials and you may not share or otherwise disclose your Login Credentials with anyone else. You are responsible for any activity occurring under your account (other than activity that we are directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized use of your Login Credentials or access to your account, you should notify us immediately. We occasionally send notices to the email address you register with us. You are responsible for keeping your email address and, where applicable, your contact details and payment details associated with your account current and accurate. You agree that we may access and use your account information and contact you to manage your account, or to provide training and support for the Services to you. Further, you agree that if you are using the Services on behalf of an organization (which we may assume to be true if the email address you provide to us includes a domain name of a business or organization), we may share your Login Credentials and account information with management personnel who have apparent authority for that business or organization.
- Ownership. Subject to the license granted to us in Section 7.2(c), we acknowledge and agree that you shall retain and own all right, title and interest and all intellectual property rights in and to the Information. You acknowledge and agree that we retain and own all right, title and interest and all intellectual property rights in and to the Services, all materials used by us to provide the Services, and all copies thereof and customizations and modifications thereto (collectively, the “Materials”). Except for the limited access rights set forth in Section 3, nothing herein transfers or conveys to you any right, title or interest in or to the Materials. We reserve all rights in and to the Materials not expressly granted herein.
- 10.1 Changes to the Services. We may from time to time, in our sole discretion, change some or all of the functionality or any component of the Services.
- 10.2 Changes to this Agreement. We may from time to time, in our sole discretion, change some of the terms and conditions of this Agreement. If any such change is material, as determined in our sole discretion, we will notify you by email. Notice of amendments may also be posted when you log in to your account. By continuing to access and use our Services after those changes become effective, you consent and agree to be bound by the revised Agreement.
- Confidential Information.
- 11.1 Restrictions. Each party (“Recipient”) acknowledges that confidential information (including trade secrets and confidential technical, financial and business information) of the other party (“Discloser”) may be disclosed 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 purpose of fulfilling its obligations or exercising its rights under this Agreement and as otherwise 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. 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 except to Recipient’s employees, contractors and consultants who have a need to access such Confidential Information in order to enable Recipient to fulfill its obligations or exercise its rights under this Agreement. You agree not to: (a) disclose to third parties (whether in writing or orally) any benchmark test information related to the Services, or (b) use our Confidential Information to create any computer software or documentation that is similar to the Services.
- 11.2 Exceptions. Information shall not be subject to the restrictions set forth in this Section 11 to the extent that such 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 (provided that Recipient provides Discloser with notice of such requirement prior to any such disclosure and takes steps reasonably necessary to maintain the information in confidence).
- Warranties and Disclaimer
- 12.1 By SurveyGizmo. We warrant that the Services will be performed in a workmanlike manner in accordance with generally accepted industry standards. If you report any noncompliance with the foregoing warranty to us, and, if applicable, you provide us with such detailed information as we may reasonably require to permit us to reproduce such non-conformity, then we, in our sole discretion, shall use commercially reasonable efforts to correct such non-conformity. The foregoing states our sole obligation, and your exclusive remedy, in the event of the breach of any of the warranties set forth in this Section 12.1.
- 12.2 Disclaimer.
THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 12 ARE THE EXCLUSIVE WARRANTIES WE MAKE WITH RESPECT TO THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT. WE EXPRESSLY DISCLAIM (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT (A) THE SERVICES WILL MEET YOUR BUSINESS REQUIREMENTS, (B) THE OPERATION OF THE SERVICES WILL BE COMPLETELY SECURE, ERROR-FREE OR UNINTERRUPTED, OR (C) ALL ERRORS WILL BE CORRECTED. WE SHALL HAVE NO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS IN ACCESS TO OR USE OF THE SERVICES RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS CONNECTIONS OR EQUIPMENT. YOU ACKNOWLEDGE AND AGREE THAT THE OUR SUPPLIERS MAKE NO DIRECT WARRANTY OF ANY KIND TO YOU UNDER THIS AGREEMENT.
- Indemnification. You agree to defend, at your own expense, us and our affiliates, employees, officers, directors and shareholders from and against any claim, suit, action or proceedings that arises from: (i) use of the Services by you or any Authorized User, (ii) any Information; or (iii) any failure by you or any Authorized User to comply with all applicable laws and regulations. You agree to indemnify and hold us harmless against damages, losses, costs (including reasonable attorneys’ fees) or judgments awarded against us in connection with any such claim.
- Limitation of Liability
IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND ARISING OUT OF THE SERVICES OR THIS AGREEMENT (INCLUDING WITHOUT LIMITATION COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF PROFITS OR LOSS OF DATA). OUR AGGREGATE, MAXIMUM LIABILITY FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID TO US BY YOU PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS AGREEMENT APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT (WHETHER ON THE BASIS OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF LOSS OR DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT. You acknowledge that our pricing reflects the allocation of risk set forth in this Agreement and that we would not enter this Agreement without these protections.
- Term and Termination.
- 15.1 Term. This Agreement will commence on the date that you agree to be bound by this Agreement as set forth in this Agreement or the date that you begin using the Services (whichever occurs first) (the “Effective Date”) and will continue until terminated by either party in accordance with Section 15.2 (the “Term”).
- 15.2 Termination.
- (a) Suspension or Termination by Us. SurveyGizmo reserves the right to suspend or terminate your account and your access and use of the Services, at any time without prior notice, for any reason, including but not limited to the following reasons: (i) you fail to make any payment when due under this Agreement, (ii) your use of the Service violates any term of Section 4 (Restrictions), (iii) you engage in conduct that SurveyGizmo believes is harmful to other users of the Services or the business of SurveyGizmo or other third party information providers (including slowing down the servers and affecting other users), (iv) you engage in phishing attempts or schemes or Ponzi or pyramid schemes, or (v) you breach or violate any other term or condition of this Agreement or any of our policies, community standards or guidelines for the Services.
- (b) Termination by You. You may cancel the Services for which you are registered at any time, in which case this Agreement will terminate at the end of the then-current Billing Period. You will not receive a refund for any Fees paid for the Billing Period in which you cancel the Services, unless required by law.
- 15.3 Effect of Termination. Upon any termination of this Agreement: (a) we may immediately cease providing the Services; (b) we may immediately terminate your access to the Services (including without limitation any Information stored therein); (c) the access rights granted under Section 3 will automatically terminate; and (d) either party may request of the other that its Confidential Information (excluding the Information, which is treated separately below in this Section) be returned or destroyed, provided that the responding party shall be entitled to charge reasonable fees and materials charges for doing so. If no request is received for the return of Confidential Information within thirty (30) days of the termination of this Agreement, the requesting party acknowledges and agrees that the responding party may or may not delete or destroy at its discretion all such Confidential Information. You acknowledge that Respondent Information is returned to you as you run surveys using the Services. You may export the Information on your own by using the “export” function available to you through the Services.
- 15.4 Survival. The parties hereto agree that the provisions hereof requiring performance or fulfillment after the expiration or termination of this Agreement shall survive such expiration or termination. Without limiting the generality of the foregoing sentence, the provisions of this Agreement relating to ownership, Confidential Information, indemnification, warranty disclaimer, and limits of liability shall survive the expiration or termination of this Agreement.
- 16.1 Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, confirmed 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 upon confirmation of receipt of facsimile or email. Notices will be sent to you at the addresses associated with your account, or at such other address as you may specify in writing pursuant to this Section 16.1. You may send notices to us at Attention: Compliance, SurveyGizmo, 4888 Pearl East Circle, Suite 100W, Boulder, CO 80301.
- 16.2 Publicity. You consent to our use of your name and/or logo on our website and/or in our marketing materials, for the sole purpose of identifying you as a user of the Services. If you contract us at compliance@SurveyGizmo.com with the subject of Publicity, you may request that we not use your name and/or logo.
- 16.3 Force Majeure. If the performance of 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 labor 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 the affected party, the party so affected shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder whenever such causes are removed.
- 16.4 Independent Contractor. Our employees shall not be deemed at any time to be your employees or servants and we are and shall remain an independent contractor for all purposes. Unless otherwise agreed to in writing, we do not undertake to perform any of your obligations whether regulatory or contractual, or to assume any responsibility for your business or operations.
- 16.5 Nonsolicitation. During the Term of this Agreement and for a period of one (1) year thereafter, you agree that you shall not directly or indirectly solicit any employees or contractor of SurveyGizmo or its affiliates for employment or contract for services by you or your employer.
- 16.6 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.
- 16.7 Assignment. You many not assign or transfer, by operation of law or otherwise, this Agreement or any of your rights under this Agreement to any third party without our prior written consent. 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.
- 16.9 Dispute Resolution.
- (a) Mediation. If any dispute related to this Agreement cannot be resolved by negotiation, the parties agree, upon either party giving written notice, the parties will submit the dispute to non-binding mediation by a mediator mutually selected by the parties. If the parties are unable to agree upon a mediator, the American Arbitration Association shall appoint the mediator. In any event, the mediation shall take place within 30 days of the date that a party gives the other party written notice of its desire to mediate the dispute. The cost of the mediation shall be borne equally by the parties.
- (b) Arbitration. If the dispute is not resolved by mediation pursuant to Section 16.8(a) (Mediation) above, it shall be resolved by arbitration in Boulder, Colorado in accordance with the Commercial Arbitration Rules of and by the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any Court having jurisdiction thereof. The decision of the arbitrators shall be final and conclusive. YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS THAT GIVE RISE TO A CLAIM, OR YOU WAIVE YOUR RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT OR FACTS.
- 16.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without reference to its conflict or choice of law rules or principles. You hereby submit to the exclusive jurisdiction of the courts of the State of Colorado for any legal action arising out of this Agreement or the performance of the obligations hereunder or thereunder.
- Feature-Specific Terms and Conditions.
- 17.1 API. SurveyGizmo may make available from time to time certain application programming interfaces that enable the Services to interface with other platforms and applications (“APIs”). SurveyGizmo may iterate on the version of the API and the you must periodically check for the latest version. Subject to your compliance with these terms, SurveyGizmo grants you a revocable (upon notice to you), non-exclusive, non-transferable right to use the API for the sole purpose of enabling applications to interface with our solution. You shall not use our APIs for any other purpose and shall not make our APIs available to any third party.
- 17.2 Fonts. The Services provide certain fonts (the “SG Fonts”) to use in the creation of surveys. In addition, the instructions available through the Services instruct users how they may utilize fonts other than the SG Fonts (“Customer Fonts”) in the creation of surveys. By using Customer Fonts, you represent and warrant that all such Customer Fonts are owned by and/or licensed to you and that your use of such Customer Fonts does not and will not infringe on the intellectual property rights of any third party. In no event will SurveyGizmo be responsible or liable for your use of any Customer Fonts.
- 17.3 NewMeasures LLC Human Resources 360 Integration. If you use NewMeasures LLC’s Human Resources 360 Integration, then the terms and conditions set forth in this Section 17.3 apply to you. You agree to not use proprietary information (e.g., survey items, normative data) provided by NewMeasures LLC outside of the scope of this Agreement. NewMeasures LLC will be allowed to include you in its larger database for the purposes of aggregating and benchmarking but under no circumstances will the aggregate data identify in any way you or your Survey Respondents. At all times, NewMeasures LLC will maintain confidentiality of your data.
Last Modified: April 14, 2017
Effective Date: April 17, 2017