Welcome to the SATISFYD web site (the “Site”), which is owned and operated by Strategic Feedback Inc. (“SATISFYD”). Please review the following terms and conditions concerning your use of the Site. By accessing, using or downloading any materials or information provided on the Site, you agree to follow and be bound by these terms and conditions (the “Terms”). Part I of the Terms relates to specific services provided by SATISFYD and use of the private areas of the Site. Part II of the Terms relates to all users who access the publicly available areas of the Site. If you have any questions about these Terms, please contact SATISFYD at 800-562-9557. If you do not agree with these Terms, you may not use this Site. SATISFYD may amend these Terms at any time by posting the amended terms on the Site. Except as stated below, all amended terms shall automatically be effective thirty (30) days after they are initially posted on the Site. These Terms were last revised November, 19, 2002.
PART I: GENERAL TERMS AND CONDITIONS RELATING TO USE OF SATISFYD SERVICES.
1. Applicability. The following terms and conditions apply to the provision of services (the “Services”) by SATISFYD pursuant to any written System Order (the “System Order”) submitted by or to a current or prospective SATISFYD client (the “Company”) and approved in writing by both SATISFYD and Company. Upon the parties’ execution of a System Order, the System Order and these Terms will collectively form the agreement between the parties (the “Agreement”) relating to the services, information, and products to be furnished by SATISFYD to Company pursuant to the System Order. To the extent that any terms of the System Order conflict with these Terms, a System Order signed by both parties shall control.
2. Services and Compensation.
2.1 Services. SATISFYD will provide Company the survey, research and analysis services (“Services”) set forth on the System Order(s) executed by SATISFYD and Company.
2.2 Company Obligations. Company shall, in a timely fashion, provide and make available to SATISFYD all data, people, equipment and approvals (including but not limited to those specified in the System Order) required by SATISFYD to complete its work hereunder.
2.3 Compensation. Company agrees to pay to SATISFYD the fees for the Services in the amounts and according to the schedule set forth in the applicable System Order. Unless otherwise specified in the System Order, payments shall be due upon notice from SATISFYD that the applicable milestone or event has been completed or occurred. All payments are nonrefundable.
3. Confidential Information.
3.1 Rights in Confidential Information. Each party (the “Recipient”) acknowledges and agrees that the other party (the “Provider”) has disclosed or may disclose confidential or proprietary information relating to the Provider’s business and identified as confidential in writing at the time of disclosure (the “Confidential Information”). Recipient agrees that it will not use or disclose to any third party any Confidential Information (including methods or concepts utilized in the Confidential Information) to anyone without the Provider’s express prior written consent, except as contemplated by this Agreement. Provider consents to the disclosure of its Confidential Information to the employees of Recipient as is reasonably necessary to allow Recipient to perform its obligations under this Agreement.
3.2 Confidential Information. For the purposes of this Agreement, Confidential Information shall include, but is not limited to, the terms and conditions of Provider’s relationship with its customers and vendors, Provider’s technical and business information relating to inventions or products, research and development, production, manufacturing and engineering, finances, marketing, and production and future business plans. Notwithstanding the other provisions of this Agreement, nothing received by either party shall be considered to be Confidential Information of the other if it: (i) is or becomes generally available to the public through no fault of the Recipient, (ii) was in the Recipient’s possession or known by the Recipient prior to receipt from the Provider, (iii) was rightfully disclosed to the Recipient by a third party, or (iv) was independently developed by the Recipient without use of any Confidential Information of the Provider. The Recipient may make disclosures required by law or court order provided the Recipient uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Provider to participate in the proceeding.
3.3 Return of Information. Upon termination of this Agreement for any reason, Recipient shall promptly return or destroy within twenty (20) days after Provider’s written request therefor, all originals (and all copies thereof in the Recipient’s possession or control) of all Confidential Information originally disclosed to Recipient which has been fixed in any tangible or electronic means of expression.
3.4 Personal Data. If Personal Data (as that term is defined by the EU Data Privacy Directive 95/46/EC) of European Union (“EU”) residents will be processed by SATISFYD pursuant to this Agreement the following terms and conditions shall apply:
(b) SATISFYD represents that it has joined the US-EU data privacy safe harbor as a data processor and SATISFYD agrees (i) to process any Personal Data transferred to or collected by SATISFYD only as a Data Processor (as that term is defined in the EU Data Privacy Directive) on behalf Company, (ii) to maintain industry standard and reasonable technical and organizational security measures, and (iii) to comply with Company’s instructions regarding processing of Personal Data.
4. Indemnification. Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party, its affiliates, and each of their respective partners, officers, directors, employees and agents (each, an “Indemnified Party”) from and against any and all third party damages, claims, liabilities, judgments, actions, lawsuits, executions, costs (including reasonable attorneys’ fees and costs and expenses of legal actions awarded) and expenses arising from any alleged or actual libel, slander, defamation, infringement of copyright or other intellectual property right, breach of Section 3.4 (Personal Data) or Section 8 (Hosting of Work Product Reporting Site), piracy, plagiarism or invasion of the right of privacy committed or alleged to have been committed by the Indemnifying Party in connection with this Agreement. The Indemnifying Party’s obligations under this Section 4 are subject to the conditions that the Indemnified Party give the Indemnifying Party prompt written notice of any such claim, allow the Indemnifying Party to control the defense and settlement of the claim, and cooperate with the Indemnifying Party, at the Indemnifying Party’s request and expense, in defending or settling the claim.
5.1 Warranty by SATISFYD. SATISFYD represents and warrants to Company that: (i) SATISFYD will perform the Services in a professional and workmanlike manner, in accordance with the standard practices of SATISFYD’s industry; (ii) as of the date on which SATISFYD executes the System Order, SATISFYD has no knowledge of any claims that would adversely affect SATISFYD’s ability to assign all right, title and interest in and to the Work Product (as defined in Section 7.2) to Company; and (iii) SATISFYD has full power and authority to enter into this Agreement. If Company notifies SATISFYD in writing within thirty (30) days after SATISFYD completes performance of certain Services that SATISFYD has breached the warranty set forth in subsection (i) above with respect to such Services, SATISFYD will, at its own expense and Company’s exclusive remedy for such breach, use commercially reasonable efforts to reperform the Services; provided, however, that, if SATISFYD Determines that it is unable to reperform the Services, SATISFYD will refund to Company the fees actually paid by Company to SATISFYD for such Services.
5.2 Disclaimer. EXCEPT FOR THE FOREGOING WARRANTIES, SATISFYD DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY, AND QUIET ENJOYMENT. SATISFYD MAKES NO WARRANTY REGARDING FREEDOM FROM BUGS OR UNINTERRUPTED USE. COMPANY ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.
5.3 Warranty by Company. Company represents and warrants to SATISFYD that: (i) it has full power and authority to enter into this Agreement; and (ii) it will not provide any information to SATISFYD that (a) infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation, (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing, (d) is materially false, misleading or inaccurate.
6. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY SHALL BE LIABLE, EXCEPT WITH RESPECT TO THE OBLIGATIONS OF CONFIDENTIALITY IN SECTION 3, ABOVE, AND THE INDEMNITY OBLIGATIONS IN SECTION 4, ABOVE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, LOST DATA OR FOR COST OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL SATISFYD BE LIABLE FOR ANY AMOUNT IN EXCESS OF THOSE AMOUNTS PAID OR PAYABLE TO SATISFYD BY COMPANY DURING THE PRIOR TWELVE (12) MONTH PERIOD UNDER THE SPECIFIC SYSTEM ORDER FROM WHICH COMPANY’S CLAIM DIRECTLY AROSE. COMPANY ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SATISFYD WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. COMPANY AGREES THAT SATISFYD SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT.
7. Intellectual Property.
7.1 Intellectual Property. Company agrees not to infringe any trademarks, copyrights, or patents related to the technology and Services provided by SATISFYD. Any enhancements to the technology, Services or questions that arise during the course of this Agreement shall be the sole and exclusive property of SATISFYD and are hereby assigned by the Company to SATISFYD.
7.2 Questions and Work Product. SATISFYD agrees that: (i) Company shall be free to continue use of content and questions of any survey questionnaire used in the performance of the Services following the termination of this Agreement; and (ii) SATISFYD will not disclose to third parties which questions and content were included in the questionnaires for Company. All resulting responses from customers collected in the survey process and any other customer data accumulated by SATISFYD During the course of providing the Services (collectively, the “Work Product”) are Company’s sole and exclusive property.
7.3 License Grants.
(a) Software Applications. Subject to the terms and conditions of this Agreement (including, without limitation, Company’s obligation to pay to SATISFYD any and all fees in accordance with Section 2.3 above), Company will have a non-exclusive, non-transferable, non-sublicenseable, revocable license to access the Site and use the Applications solely for Company’s internal business purposes in connection with SATISFYD provision of the Services. For purposes of this Agreement, “Applications” shall mean the software applications set forth in a System Order or otherwise made available by SATISFYD for use by Company as a part of the Services pursuant to this Agreement. Company shall not, and shall not permit its employees, contractors or agents to: (a) alter, modify, improve, reverse engineer, disassemble or decompile the Applications except to the extent expressly permitted by applicable law; (b) interfere in any manner with the hosting of the Applications or the Services associated therewith; (c) sublicense or transfer any of Company’s rights under this Agreement, except as otherwise provided in this Agreement, or (d) otherwise use the Services in a timesharing or service bureau environment or otherwise for the benefit of a third party.
(b) Normative Research. If Company requests that SATISFYD provide to Company assessments of Company customer performance data in comparison with that of Company’s competitors (“Normative Research”) and SATISFYD agrees to provide Normative Research, then Company shall be deemed to have consented to: (i) SATISFYD use of Work Product to conduct Normative Research and create data based thereon (“Normative Data”); and (ii) the availability of Company data in aggregate form to those SATISFYD Systems clients for whom SATISFYD is providing a comparable service. All Normative Data provided to Company or third parties will be in aggregate form only; Company’s identity shall not be associated in any way with data made available to third parties as a result of Normative Research or otherwise.
(c) License to Use Normative Research. If a System Order indicates that Company has agreed to pay for access to Normative Data, then, subject to the terms and conditions of this Agreement (including, without limitation, Company’s obligation to pay to SATISFYD any and all fees applicable to Normative Data), Company will have a non-exclusive, non-transferable, non-sublicenseable, revocable license to receive Normative Data as a part of the reports generated and provided by SATISFYD to Company hereunder. Company will have the right to use the Normative Data for Company’s internal business purposes only, including internally reproducing and internally distributing the Normative Data. In no event, however, may Company make Normative Data available to any third party in any manner.
(d) Trademarks. Company hereby grants to SATISFYD a non-exclusive and nonassignable authorization to use those trademarks, service marks, branding elements, and other indicia of origin designated and provided by Company to SATISFYD pursuant to this Agreement (the “Company Marks”) to provide the Services hereunder. Title to and ownership of the Company Marks shall remain with Company and its suppliers. SATISFYD shall not take any action inconsistent with the Company’s ownership of the Company Marks, and any benefits accruing from use of the Company Marks shall automatically vest in and inure to the benefit of Company.
(e) Reservation of Rights. Except as expressly set forth in the Agreement, no intellectual property rights are licensed, assigned, or otherwise conferred under this Agreement.
8. Hosting of Work Product Reporting Site. If SATISFYD is hosting a private portion of the Site on which Company can view customer satisfaction reports (the “Work Product Reporting Site”) or similar resource pursuant to a System Order, the Work Product Reporting Site will be subject to SATISFYD standard computer security protections, which protection will be disclosed to Company. However, SATISFYD makes no warranty and shall have no liability to Company if the security measures implemented prove defective in any way or for any reason, including but not limited to, an unauthorized third party gaining access to the Work Product Reporting Site hosted by SATISFYD for or on behalf of Company.
8.1 Authorized Users. Company may designate persons to act as its agents to use the Web Product Reporting Site. Company represents, warrants, and covenants that each person who registers under Company’s account is and during the Term of this Agreement will be an authorized agent of Company for purposes of this Agreement (an “Authorized User”). In reliance on this representation and warranty, SATISFYD will issue a User ID and password to each Authorized User.
8.2 Representations and Warranties. Company represents and warrants that (a) it has full power and authority to enter into and perform this Agreement; (b) the person signing the Agreement (i.e., signing the Service Order) on such Company’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) the performance by Company of its obligations under this Agreement will not conflict with or be a breach of any other agreement to which Company is a party, or any law or regulation to which Company is subject.
8.3 Responsibility for Access. Company will be solely responsible and liable for any and all access to and use of the Web Product Reporting Site (including all activities, orders, and transactions) by any Authorized User or any other person logging in under a User ID registered under Company’s account (other than a person who obtains a User ID solely as a direct result of a breach by SATISFYD of its obligations under Section 10.3 (Company Login Information)). Company acknowledges that Company’s access information, including User IDs and passwords of its Authorized Users, will be Company’s “key” to Web Product Reporting Site and, accordingly, Company will be responsible for maintaining the confidentiality of such access information (including each User ID and password). Company will immediately notify SATISFYD if Company becomes aware of any activity indicating that Company’s account is being used without authorization.
9. Termination of Agreement. SATISFYD Services hereunder with respect to a particular System Order shall be for the period indicated in the System Order; provided, however, either party may terminate this Agreement (in whole or with respect to any System Order) upon thirty (30) days’ prior written notice to the other. Company will remain obligated to pay SATISFYD for any Services provided up through the date of termination as set forth in the applicable System Order or, for partially completed Services, for which a milestone payment has not yet accrued, at SATISFYD then-current time and materials rates. In addition, this Agreement shall terminate automatically on the occurrence of the bankruptcy or insolvency of either party. Sections 3, 4, 5, 6, 7, 9, 10, all payment obligations specified under this Agreement, and any System Orders with respect to which this Agreement has not been terminated shall survive termination of this Agreement.
10. General Provisions.
10.1 Assignment. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by either party without the prior written consent of the other party, except for rights to payment and except to a person or entity who acquires all or substantially all of the assets or business of a party, whether by sale, merger or otherwise. Any assignments in violation of this Section will be null and void. SATISFYD may subcontract or “outsource” part, but not all, of its obligations hereunder.
10.2 Notices. Any notices to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses set forth in the System Order, but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt; mailed notices will be deemed communicated as of the third day after mailing.
10.3 Delays. SATISFYD shall not be liable for any failure or delay in performance due to causes beyond its reasonable control.
10.4 Marketing. SATISFYD may list Company as a client in marketing material. SATISFYD may publish a success story on the Company’s experience with SATISFYD products and services upon receiving written permission from the Company, which permission will not be unreasonably delayed or withheld. The Company will reference SATISFYD when presenting or using information coming from any SATISFYD product, either internally or externally.
10.5 Governing Law; Venue. This Agreement and the rights and obligations of the parties under this Agreement shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended; rather, this Agreement and the rights and obligations of the parties hereunder shall be governed in all respects by the laws of the State of California as such laws apply to contracts between California residents performed entirely within California. Company agrees that upon SATISFYD request, all disputes arising hereunder shall be adjudicated in the state and federal courts having jurisdiction over disputes arising in Santa Clara County, California, and Company hereby agrees to consent to the personal jurisdiction of such courts.
10.6 Miscellaneous. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
PART II: GENERAL TERMS AND CONDITIONS RELATING TO PUBLIC AREAS OF THE SITE.
1. Applicability. The following terms, as well as those contained in paragraphs 10.5 and 10.6 of Part I above apply to all users who access the publicly-accessible areas of the Site.
2. Copyright. The documents and other content located on the Site are protected by copyright laws throughout the world. Any modification or unauthorized reproduction or distribution of any content on the Site is strictly prohibited. All copyright and proprietary notices on any content from the Site must be retained on any copies. SATISFYD and its suppliers reserve all rights not granted in these Terms.
3. Disclaimers. SATISFYD PROVIDES THE SITE AND THE CONTENT ON THE SITE ON AN “AS-IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SATISFYD DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, REGARDING THE SITE AND ANY AND ALL INFORMATION OR MATERIALS INCLUDED OR OFFERED ON THE SITE. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, WITH RESPECT TO THIS PART II, IN NO EVENT SHALL SATISFYD BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, LOST DATA OR FOR COST OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.