PollBuzzer Services Agreement

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Version 1.2

Date created: 04/17/2012

This Services Agreement (this “Agreement”) is made as of the date on which the Customer has accepted the Agreement by clicking on “I Accept” below (“Effective Date”), by and between Dandel Enterprises, Inc., a Delaware corporation that markets services using the trade name PollBuzzer (“PollBuzzer”), and the Customer under whose login information the Agreement is accepted (“CUSTOMER,” and together with PollBuzzer, the “Parties”).

RECITALS

PollBuzzer is the owner and operator a web-based service located at www.pollbuzzer.com providing public opinion survey services.

CUSTOMER wishes to formalize the terms of a commercial relationship with PollBuzzer on the terms and conditions set forth below.

NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

  1. Services.
  • PollBuzzer will provide to CUSTOMER some or all of the the following services (“Services”), from time to time:
  1. Use of PollBuzzer’s Question Wizard tool to create survey question(s);
  2. Use of PollBuzzer’s Question Wizard tool to select the respondent sample profile and sample size from PollBuzzer’s proprietary panel of respondents; and
  3. The ability to export such responses to Microsoft Excel.
  1. Payment.
  • In consideration for the Services, CUSTOMER will pay PollBuzzer the fees (the “Fees”) quoted by Pollbuzzer together with any applicable one-time or ongoing expenses (the “Expenses”) associated with customizing the Services to CUSTOMER’s requirements, in advance of the distribution of a survey question(s). Fees and Expenses may only be paid in advance by preauthorization of CUSTOMER’s credit card or debit card. In the event that a survey does not reach its intended minimum number of completed responses within the chosen time window, Dandel will refund said credit card payment in reconciling the preauthorization, so that CUSTOMER’s final payment will reflect only the completed responses that CUSTOMER actually receives. PollBuzzer reserves the right to modify the schedule of fees and billing methods at any time. Refunds will not be given should the Agreement be terminated in the middle of a billing cycle.
  • The Fees and Expenses do not include any federal, state, regional, local or other governmental taxes, excise taxes, value added taxes, tariffs or other governmental charges that may be imposed upon the sale, performance or delivery of the Services. CUSTOMER shall be responsible for all such taxes and charges, other than taxes on PollBuzzer’s net income.
  1. Term and Termination.
  • This Agreement shall commence on the Effective Date and shall continue until terminated (a) by CUSTOMER by email to support@pollbuzzer.com, or (b) by PollBuzzer upon the delivery of written notice to CUSTOMER, in either case for any reason or no reason (the “Term”).
  1. Ownership and License.
  • All work product that PollBuzzer prepares or delivers to CUSTOMER in the performance of the Services arising out of or resulting from the performance of this Agreement, including (a) poll response data, (b) information about or otherwise relating to PollBuzzer’s users and (c) developments created by PollBuzzer’s employees, agents or otherwise, and all proprietary rights thereto, including copyrights and patent rights therein (collectively, “Work Product”) shall remain the property of PollBuzzer at all times, and CUSTOMER shall be granted a nonexclusive, nonassignable license to access, on a read-only basis, the Work Product during the Term. In all cases, poll response data generated by PollBuzzer and used by CUSTOMER shall be credited to PollBuzzer using the following source citation (the “Citation”), which shall appear in close proximity to such data: Poll data Copyright 2013 PollBuzzer. All Rights Reserved. Learn more at www.pollbuzzer.com. Following termination of this Agreement, CUSTOMER (and only CUSTOMER) may continue to use poll response data retrieved or otherwise provided by PollBuzzer during the Term so long as the source citation continues to appear in close proximity to the data.
  • The Parties acknowledge and agree that all right, title and interest in and to all materials and information supplied by CUSTOMER, including CUSTOMER program code, for use in the delivery of the Services (collectively, “CUSTOMER Property”) will be owned by CUSTOMER; provided, however, CUSTOMER hereby grants PollBuzzer a royalty-free, nonexclusive license to use the CUSTOMER Property during the Term solely for providing the Services hereunder.
  1. Confidential Information. Confidential Information. Each Party shall protect and keep confidential all information and materials (“Confidential Information”) disclosed by the other Party, whether or not it is marked or identified as “Confidential Information”, and neither party shall, except in the case of PollBuzzer in connection with the performance of the Services hereunder, use or disclose any such Confidential Information. Confidential Information shall include, without limitation, computer programs, code, algorithms, know-how, methodologies, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, pricing and fee schedules, sales and marketing plans, financial and product development plans, customer or user lists, customer or user information of any kind (except anonymous poll response data), information regarding distribution channels, forecasts and strategies. The obligations of confidentiality shall not apply to any information which: (i) was previously known to a Party; (ii) is or becomes publicly available, through no fault of the disclosing Party; (iii) is disclosed to a Party by a third party having no obligation of confidentiality to the affected Party; or (iv) is required to be disclosed as a matter of law. Each Party shall (x) maintain in confidence such Confidential Information, using the same degree of care as it uses to protect its own confidential information of like nature, but not less than a reasonable degree of care; and (y) not disclose any such Confidential Information to any person outside such Party’s business organization, including, without limitation, to any competitor of PollBuzzer.
  1. Inappropriate Content PollBuzzer reserves the right to prevent a survey from being distributed if that survey is deemed inappropriate. The ability to deem a survey inappropriate resides entirely with PollBuzzer, and reasons that a survey might be deemed inappropriate include, but are not limited to, profanity, offensive language, unapproved (by us) advertising.
  1. Limitation of Liability. IN NO EVENT SHALL POLLBUZZER BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL POLLBUZZER’S LIABILITY TO CUSTOMER FOR ALL MATTERS ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT THEN ACTUALLY PAID BY CUSTOMER TO POLLBUZZER IN ACCORDANCE WITH THIS AGREEMENT.
  1. Independent Contractors. The parties are independent contractors. Nothing in this Agreement shall be deemed to create any form of partnership, principal-agent relationship, employer-employee relationship, or joint venture between the parties hereto. All personnel used by PollBuzzer shall be considered employees, contractors or agents of PollBuzzer. PollBuzzer is responsible for all such personnel while performing under this Agreement and for the payment of their compensation (including, if applicable, withholding of income taxes, and the payment and withholding of other payroll taxes), workers’ compensation, disability benefits and the like, and will indemnify and hold harmless CUSTOMER for any claims, costs or expenses in any way relating thereto. Neither PollBuzzer nor CUSTOMER shall have the authority to bind, commit or incur any liability on behalf of the other party or to otherwise act in any way as an agent or representative of the other party.
  1. Assignment. This Agreement shall not be assigned by CUSTOMER by operation of law or otherwise. PollBuzzer reserves the right to assign its rights and obligations hereunder.
  1. General. All notices shall be in writing and given by electronic mail, personal delivery or commercial overnight courier, to the recipient’s address as set forth below. Notice shall be deemed given on (a) the date of transmission of an electronic mail message or on the date of personal delivery or (b) the next business day after delivery to such courier (unless the courier’s records evidence a later delivery). This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. All provisions regarding ownership, payment, warranty, indemnification, liability and confidentiality shall survive the expiration or termination of this Agreement. Neither party shall be liable for delays caused by fire, accident, labor dispute, war, insurrection, riot, act of government, act of nature, or any other cause reasonably beyond its control; but each party shall use all reasonable efforts to minimize the extent of any such delay. This Agreement shall be deemed to have been made in The Commonwealth of Massachusetts, USA, and shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts, USA exclusive of its rules governing choice of law and conflict of laws. All actions under or in connection with this Agreement shall be brought in the state or Federal courts located in Boston, Massachusetts. The failure of any party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce any such provision. The invalidity or unenforceability, in whole or in part, of any provision, term, or condition hereof shall not affect the validity or enforceability of the remainder of such provision, term or condition or of any other provision, term, or condition.
  1. Survival. Sections 4, 5, 6, 7, 8, 10, 11, and 12 shall survive the termination of this Agreement.
  1. Entire Agreement. This Agreement, together with the Terms of Use located at  www.askpollbuzzer.com/About/Terms and the Privacy Policy located at www.askpollbuzzer.com/About/Privacy, constitute the entire agreement between PollBuzzer and CUSTOMER. In the event that this Agreement should conflict with the afore mentioned Terms of Use and/or Privacy Policy, the provisions of this Agreement shall govern. This Agreement may not be amended unless such amendment is in writing and signed by both parties hereto.