PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY BEFORE USING TOLUNA’S SAMPLEXPRESS AS A CUSTOMER. YOUR REGISTRATION INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT USE TOLUNA’S SAMPLEXPRESS.
These Terms and Conditions constitute the entire agreement (the "Agreement") between you ("you" or "Customer") and Toluna SAS, 1 bis rue Collange 92300 Levallois-Perret - FRANCE ("Toluna") for the use of Toluna's quick sample provision service named SampleXpress (the "Service") accessible on its website www.sampleXpress.com www.sampleXpress.com or any of its local sub-websites (collectively, the "Website"). The Service is provided to you in accordance with this Agreement and any other applicable rules and policies set forth on the Website.
The Service allows you to create a request for respondents from Toluna’s SampleXpress, and obtain respondents to interview in your survey, hosted on your web servers, in the selected country you specify. You are solely responsible for all of the content of the survey you host. You are responsible for specifying in Toluna’s SampleXpress you create and post on the Website, including, but not limited to the creation, renewal, updating, deletion, control and all other aspects of any files, software, and scripts, survey questions and responses, information, messages or other materials communicated, submitted or transmitted by you to qualify Toluna respondents through the Service (collectively, the "Customer Content"). By using the Service, you grant Toluna the right to reproduce, publish, display and distribute your Toluna’s SampleXpress project’s input on the Website. You acknowledge and agree that Toluna does not warrant participation rates and that participation rates may vary drastically depending on content, placement and audience. Toluna shall bear no liability in the event that the participation is lower than requested, except that, if you prepay to receive results to your Toluna’s SampleXpress project from Panelists and the participation of Panelists is less than 50% of the number of respondents selected by you from the Toluna panel during the time frame specified in the applicable purchase order as specified on the Website, you may receive a credit to your account by emailing to sampleXpressfirstname.lastname@example.org. Once your Toluna’s SampleXpress has been posted on the Website, you will not be able to reduce the number of respondents requested nor cancel it. The results of your Toluna’s SampleXpress will be accessible directly on the Website. Results of sample send as requested by you through Toluna’s SampleXpress are stored on the Website and will remain accessible until you remove your account. Notwithstanding the foregoing, Toluna reserves the right to reject or remove any Toluna’s SampleXpress at any time, where it has reasonable ground to believe that the content submitted to Toluna’s SampleXpress does not comply with the terms of this Agreement or any applicable legislation or regulation, or after a period of two years after your Toluna’s SampleXpress project has been posted on the Website.
The price of the Service shall be the fee quoted on this website. All fees quoted exclude Value Added Tax, sales tax and/or any other required taxes or duties where applicable. The fee quoted on this website is invoiced at the completion of your project and you pay for your invoice, 30 days net, from Toluna. You acknowledge and agree that if your payment is not received within the timeframe determined, for any reason, Toluna may suspend or cancel your Subscription. You are responsible for all charges associated with your use of the Service as notified in your account and you agree to pay all such charges, including any applicable taxes, at the rates effective at the time they are incurred. Toluna may change such fees at any time and in its sole discretion, provided that any such change shall become effective at the end of the then-current term of your Subscription. Toluna shall automatically renew your Subscription at the end of its term unless you cancel it prior to the end of the then-current Subscription. If you cancel a Subscription, the cancellation will become effective on the date that the then-current Subscription period expires.
Customer hereby agrees not to access and/or use the Service: (i) to send any unsolicited email or any commercial message or invitation; (ii) to request, collect, store and/or disclose personally identifiable data from survey respondents or to violate any applicable privacy law; (iii) to communicate any message or material that is deemed harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically or otherwise objectionable, hateful, tortuous, libelous, defamatory, slanderous or otherwise unlawful; (iv) in a manner which infringes any patent, trademark, copyright or other intellectual property rights of any third party; (v) in a manner which violates any applicable laws, rules and regulations; or (vi) in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any applicable law or regulation. Although Toluna is not responsible for any such content or communications, Toluna reserves the right to take any action it deems necessary or appropriate in its sole discretion, with respect to any such content or communications of which Toluna may become aware, at any time and without notice to Customer. Customer further acknowledges and agrees as follows:
As between Customer and Toluna, Customer shall own all right, title and interest in and to any Customer Content. During the term of your Subscription, you grant to Toluna a limited, non-exclusive, royalty-free license to host the Customer Content solely for all reasonable and necessary purposes contemplated by this Agreement. This Agreement does not transfer or convey to Toluna or any third party any right, title or interest in or to the Customer Content or any associated intellectual property rights, but only a limited right of use revocable in accordance with this Agreement. Toluna, its affiliates and/or their licensors shall remain the sole and exclusive owners of all intellectual property rights, including without limitation all patents, trademarks, service marks, copyright, database, software, and know how in and to the Website, the Service and any content therein (the "Materials"). You will not acquire any right, title, or interest in or to the Materials except as expressly set forth in this Agreement. Toluna grants you a personal, non-exclusive, non-transferable and revocable right to use the Materials for the sole purpose of using the Service in accordance with the terms of this Agreement. The Materials may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purpose whatsoever without the prior written consent of Toluna or its licensors.
This Agreement shall automatically become effective upon your first use of Toluna’s SampleXpress and shall continue until it is terminated in accordance with this Agreement. If you do not have a Subscription, you may terminate this Agreement by emailing Toluna at sampleXpressemail@example.com, and the Agreement will terminate immediately after Toluna has received said notice. If you do have a Subscription, you may cancel the Subscription and terminate this Agreement by written notice in the event Toluna materially breaches any of its obligations hereunder, and said breach is not cured within 60 days of Toluna's receipt of your notice of such breach. Toluna may terminate this Agreement and cancel any Subscription hereunder immediately by notice to you in the event that you breach any of your representations, warranties, covenants or obligations under this Agreement or contravene any applicable law. Upon any termination of the Agreement, your rights to use the Service shall cease immediately, your account will be deactivated and Toluna shall have no obligation to retain, forward or make available to you any Toluna’s SampleXpress responses or results. Upon a termination, all rights and duties of the parties toward each other shall cease except those intended to survive such termination (including, but not limited to, Sections7, 8, 9, 10, 11 and 12).
Customer shall, at its sole expense, indemnify, defend and hold Toluna, its affiliates and their respective officers, directors, employees and agents harmless from and against any loss, cost, damages, liability or expense arising out of or relating to: (i) Customer's use of the Service, including its reliance on any information or materials (including survey results or responses) obtained through the use of the Service; and/or (ii) Customer's breach of this Agreement.
TO THE FULL EXTENT PERMITTED BY LAW, TOLUNA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, SUITABILITY, AVAILABILITY, TIMELINESS, QUALITY, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU AGREE AND ACKNOWLEDGE THAT THE WEBSITE AND THE SERVICE ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," AND "WITH ALL FAULTS". OTHER THAN AS SPECIFICALLY SET FORTH HEREIN TOLUNA MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES TOLUNA MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED (INCLUDING PLUG-INS) THROUGH THE USE OF THE SERVICE IS DONE AT THE SOLE RISK OF CUSTOMER AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM TOLUNA OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TOLUNA BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER DAMAGES RELATED TO THIS AGREEMENT, THE WEBSITE OR THE SERVICE (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOST PROFITS, COSTS OF RECOVERY OR ANY OTHER DAMAGES), HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, AND WHETHER OR NOT TOLUNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TOLUNA'S LIABILITY HEREUNDER IS LIMITED TO $1,000 OR THE AMOUNT OF FEES PAID TO TOLUNA BY CUSTOMER HEREUNDER, WHICHEVER IS LESS. NO ACTION ARISING OUT OF THIS AGREEMENT (OTHER THAN AN ACTION BY TOLUNA FOR THE RECOVERY OF FEES OWED) MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION FIRST AROSE.
English law shall govern this Agreement. Any dispute or claim arising out of or in connection with this Agreement shall be settled by the courts of England.