These Terms and Conditions by and between Toluna USA, Inc. ("TOLUNA"), and the individual or entity entering into this Agreement with TOLUNA ("Client") is a legal and binding instrument entered into as of the date (the "Effective Date") of Client’s acceptance of a Work Order (as defined herein).
Certain of Toluna’s Services are described as follows:
- Full Service. TOLUNA provides Client access to TOLUNA’s online panel and other sources of online Sample (the “Sample Sources”), programs Client’s research survey, distributes invitations to the appropriate TOLUNA Sample Source as well as other Sample sources supplied by Client, hosts the research survey on its network of computer servers and gathers the quantitative marketing research data and deliver it to Client in untabulated form;
- Sample Only. TOLUNA provides Client access to TOLUNA’s Sample Sources, directs appropriate Potential Respondents to surveys programmed and hosted on Client’s computer systems and servers or on the computer systems and servers maintained by others but under Client’s direction and/or control (the “Sample Only Services”). TOLUNA’s obligation to direct Sample to Client’s surveys is subject to its determination that it has sufficient appropriate Sample and that it can meet the delivery and other terms established by Client, as well as Client’s compliance with this Agreement.
- Program and Host. TOLUNA programs Client’s research survey, invites Potential Respondents from a Sample list provided by Client or such other third parties at Client’s direction, hosts the research survey on its network of computer servers and gathers the quantitative marketing research data and delivers it to Client in untabulated form.
Performance Covenants. Client agrees to maintain the following guidelines and practices:
- Approval of Surveys. Prior to the delivery of any Potential Respondents, TOLUNA must review and approve each survey. TOLUNA reserves the right to reject any survey on the grounds that it is too long or complex, contains profane, obscene, hateful, discriminatory, or otherwise objectionable material, or otherwise fails to meet the guidelines, rules, or regulations published by TOLUNA from time to time.
- Approval of Incentive Program. TOLUNA applies incentive payments at its discretion to promote survey participation and to ensure the completion of all pending studies. Prior to the delivery of any Potential Respondents, TOLUNA must review and approve the incentive program for each survey. TOLUNA reserves the right to reject any survey on the grounds that in its opinion the incentive offered to Potential Respondents is insufficient to attract qualified respondents. All incentive programs for use in connection with TOLUNA Sample Sources must be administered by TOLUNA.
- Prepaid Incentive and Honoraria. In the case of Program and Host projects as well as studies where Potential Respondents are physicians, healthcare professionals or other highly compensated respondents, or as specified in a Work Order, Honoraria or incentives will be invoiced by TOLUNA and paid by Client prior to the start of the project. In certain instances at TOLUNA discretion, Honoraria or incentive programs will be managed by a third party contractor pursuant to a contract directly between Client and such contractor. Client agrees that in such event, the contractor is fully independent and is in no way an affiliate of TOLUNA. TOLUNA assumes no responsibility for said third party contractor and Client hereby releases and holds TOLUNA harmless from, any claims arising out of failures or breaches on the part of such third party contractor.
- Qualification and Return of Respondents. As TOLUNA directs Potential Respondents to Client’s surveys, it will mask their email address and attach a unique Respondent identification number to each Respondent. All surveys must qualify each Potential Respondent within the first five (5) questions. All Respondents who do not qualify will be immediately routed back to a URL designated by TOLUNA. All Respondents who complete one of Client’s surveys must, at the conclusion of the survey, be routed back to a URL designated by TOLUNA.
- Generic Survey Template. Prior to TOLUNA directing any Potential Respondents to Client surveys, Client must: (i) remove any and all trademarks, logos or other similar business marks and any reference to Client, its parent(s), subsidiary(ies) and/or affiliate(s) from the online survey template to be viewed by Potential Respondents, such survey templates to be pre-approved by TOLUNA in its sole and absolute discretion; and (ii) remove any similar references from the URLs of all of Client’s surveys.
- Help Requests. All help requests initiated by Potential Respondents must be directed to firstname.lastname@example.org. TOLUNA will give Client prompt notice of the help requests along with the nature of the service issues. Client will designate a help resource to work with TOLUNA Help to address the service issues raised by these help requests. Client will work diligently to address all help requests, and TOLUNA reserves the right to stop delivering Potential Respondents to any and/or all of Client’s surveys until the issues which had given rise to the help requests have been resolved to TOLUNA’s satisfaction.
- Opt-Out List. In cases where TOLUNA does not manage the opt-out list, Client covenants that it will collect all requests to opt-out of future mailings and promptly delete all those who request to be deleted from the list from which the sample was assembled. In connection with Sample Only projects where TOLUNA manages the opt-out list, TOLUNA will aggregate the email addresses of each Respondent who opted-out and deliver them to Client promptly at the conclusion of the project. Client covenants that upon receipt of such list it will promptly delete all those who request to be deleted from the list from which the sample was assembled.
- No Recruitment. When provided with access to the TOLUNA Respondent community, Client shall take no action to recruit any Potential Respondent into any panel, community, or group of individuals, online or offline, or take any action that would allow Client to contact, or allow any other party to contact, any Potential Respondent at any time in the future.
- Completion Rate. In connection with Sample Only projects, Client must maintain an 85% completion rate after a Potential Respondent has been screened by TOLUNA and passed to Client’s survey site. If the completion rate drops below 85% TOLUNA, may in its discretion: (i) stop sending respondents to the survey site; and/or (ii) bill CLIENT for respondents based on an 85% completion rate.
- Approval of Systems – Uptime. In connection with Sample Only projects, Client shall disclose the technical and performance specifications of the software and computer systems (including the software and computer systems of others) used to conduct the surveys so that TOLUNA may determine their capacity and capability. Client will be responsible for maintaining the uptime of such software and computer systems at 99.5% at all times when TOLUNA is directing Potential Respondents to its surveys. TOLUNA reserves the right to limit the number of Potential Respondents sent to Client based on its assessment of the capacity of such software and computer systems. If such software and computer systems experience any downtime or technical difficulties that result in Client’s inability to accept Potential Respondents, collect data, allow Potential Respondents to complete surveys or in any other way prevent Potential Respondents from taking and completing surveys (the “Technical Difficulties”), Client shall immediately notify TOLUNA so it may cease directing Sample to Client. In any case where Client fails to notify TOLUNA of any Technical Difficulty within 15 minutes of its occurrence, Client will be liable for the cost of Sample for the entire duration of the Technical Difficulty as if eighty percent (80%) of the Potential Respondents who visited Client’s site during the duration of the Technical Difficulty completed and qualified for the survey to which they were directed, provided, however, that if the assumed incidence of Potential Respondents for any survey affected by a Technical Difficulty is greater than eighty percent (80%), then TOLUNA will charge Client for Sample delivered at such higher percentage.
- Real-Time Reporting. In connection with Sample Only projects, Client shall maintain a system of “real-time reporting” which shall allow TOLUNA personnel access to Client’s computer systems via the World Wide Web (or such other method as the parties may agree) so that with respect to each of Client’s surveys TOLUNA can determine: (i) the number of Potential Respondents that have been directed to each survey; (ii) the number of Potential Respondents that have completed each survey; (iii) the number of Potential Respondents that have taken each survey and whose profile qualifies their responses as acceptable.
- Individual Deliverables. In the event that the Work Order to which these Terms and Conditions apply establishes separately priced deliverables (“Deliverables”) within the definition of the Services, Client agrees that: (i) each separate Deliverable has value to it on a stand-alone basis; (ii) the Deliverables each have objective and verifiable independent value; (iii) no general right of return exists with regard to any Deliverable; and (iv) Client’s obligation to pay for each Deliverable is independent of its receipt of any other Deliverable.
- No use in Controversy. Client covenants and agrees that the Services shall not be used in connection with any court proceeding, litigation, arbitration, administrative proceeding or any other claim or controversy (a “Controversy”), and that the Services will not be used as the basis for or as support for any expert opinion in any Controversy. In the event Client breaches this covenant, Client agrees that it will pay, on demand, any and all legal fees (including fees of in-house counsel), and other costs and fees incurred in responding to, objecting to, limiting or defending deposition subpoenas, interrogatories, requests for production or other served on TOLUNA in connection with the Controversy.
- Ownership of Sample Sources and Methodologies. Client agrees that the Respondent community and the identities and demographic information of the Respondents, the Services and the software, technology, and research methodologies (other than those supplied by Client) (collectively, the “Company Tools”) used by TOLUNA to render the Services are and shall be solely owned by TOLUNA. The Company Tools constitute TOLUNA’s confidential, proprietary and trade secret information. Client agrees that it shall not acquire any interest in and to the Services or the Company Tools arising out of the transactions contemplated by this Agreement.
Payment Terms/Stopped Work:
- Payment Terms. All invoices are due within thirty (30) days of the invoice date. All amounts outstanding beyond thirty (30) days of the invoice date will be subject to a finance charge of 1.5% per month. A 2% discount may be taken if Client pays the entire cost of the study 10 days from the invoice date. All amounts due under the Work Order (subject to increases as a result of changes in specifications such as study length, incidence, delivery time, and number of respondents) will be invoiced upon completion of the project. In the case of tracking studies requiring the periodic delivery of data, TOLUNA will invoice a pro-rated amount of the entire study cost with each delivery of data. Client agrees that two-thirds of the total project cost, or pro-rated part thereof will be earned by TOLUNA upon the programming of the survey and its distribution to the field. Client agrees to pay all taxes imposed by any jurisdiction or governmental entity in connection with the transactions contemplated by this Agreement, whether sales, use, excise or otherwise, except those on TOLUNA’s income.
- Stopped Work: Should Client desire to cancel or postpone any Work Order for Services hereunder, Client shall pay the greater of: (i) the pro-rated percentage of the contract price set forth on the Work Order for the Services; and (ii) two-thirds of such contract price. In the case of Sample Only Services cancelled or postponed within five (5) days prior to their scheduled start date, Client shall pay an amount equal to forty percent (40%) of the contract price. In the case of tracking studies that are terminated within the first 30 days after programming is complete, Client will pay, in addition to all other fees, a termination fee equal to fifteen percent (15%) of the project cost, less incentives.
Term and Termination:
- Term. This Agreement shall become effective with respect to each Work Order as of the Effective Date and shall remain in full force and effect for the initial term as specified therein (the “Initial Term”). If a specified Initial Term is one (1) year or greater, then, upon the expiration of the Initial Term, this Agreement shall automatically renew for one (1) or more additional terms of one (1) year (each, a “Renewal Term”) unless and until either party notifies the other party of its intent to terminate at least sixty (60) days prior to the expiration of the Initial Term or a Renewal Term. The Initial Term, together with any and all Renewal Terms, are hereinafter, collectively referred to as the “Term.”
- Termination for Breach. This Agreement may be terminated for a material breach upon thirty (30) days written notice from the non-breaching party if the breach is not cured during such notice period.
- Effect of Termination. 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, Sections 3 through 10), provided that Client shall be obliged to pay, within thirty (30) days of the effective date of termination all amounts owing to TOLUNA for unpaid Services performed hereunder.
- Confidential Information. Unless expressly authorized in writing by the other party, neither party shall disclose to any third party any non-public information or materials provided by the other party under this Agreement and reasonably understood to be confidential either because it was identified as “Confidential” or “Proprietary”, it has commercial value, or because it is not generally known in the relevant trade or industry (“Confidential Information”). No party shall use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that (i) is in or becomes available through the public domain, (ii) is already lawfully in the receiving party's possession, (iii) was known to the receiving party prior to the date of disclosure, (iv) becomes known to the receiving party from a third party having an apparent bona fide right to disclose the information, or (v) Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, providing receiving party provides disclosing party timely notice of such court order or subpoena.
- WARRANTY DISCLAIMER. TOLUNA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. OTHER THAN AS SPECIFICALLY SET FORTH HEREIN TOLUNA MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES TOLUNA MAKE ANY WARRANTY OR GUARANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICES. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM TOLUNA OR THROUGH THE SERVICES 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 CLIENT.
- LIMITATION ON LIABILITY. IN NO EVENT SHALL TOLUNA BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER DAMAGES RELATED TO THIS AGREEMENT (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 $10,000 OR THE AMOUNT OF FEES PAID TO TOLUNA UNDER THE APPLICABLE WORK ORDER, 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. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CLIENT.
- INDEMNIFICATION. With respect to claims, demands or actions against one or both parties by third parties insofar as such claim, demand or action is attributable to the acts or omissions of one party (the “Indemnifying Party”) a breach by such Indemnifying Party of a representation and/or warranty made in this Agreement, subject to the provisions of Section 8, Indemnifying Party shall: (i) indemnify the other party (the “Indemnified Party”) against any liability, cost, loss, or expense of any kind; and (ii) hold Indemnified Party harmless and save it from any liability, cost, loss, or expense of any kind. Indemnified Party shall have the right to select and control legal counsel for the defense of any such claim, demand or action and for any negotiations relating to any such claim, demand or action; however, Indemnified Party must approve any settlement of any such claim, demand or action to the extent that such settlement imposes any restrictions on or requires Indemnified Party to contribute financially to such settlement.
- Authority. Each party hereby represents and warrants to the other party that it has all necessary authority to enter into and perform its obligations under this Agreement without the consent of any third party or breach of any contract or agreement with any third party.
- Assignment. The parties shall not assign or transfer this Agreement without the express prior written consent of the other, which consent shall not be unreasonably withheld, provided however, that either party may assign its rights and obligations hereunder to a successor in the event of a change of control transaction such as a merger, reorganization, acquisition, sale of all or substantially all of its assets or similar transaction.
- Force Majeure. Other than with respect to Client’s payment obligations hereunder, neither party shall be deemed in default of the Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted or prevented by reason of any act of God, fire, natural disaster, act of government, strikes or labor disputes, inability to provide raw materials, power or supplies or any other similar act or condition beyond the reasonable control of such party.
- Choice of Law and Venue. This Agreement and any dispute arising out of or in connection with this Agreement shall be governed by and construed under the laws of the State of Connecticut, without regard to the principles of conflict of laws. All actions arising out of this Agreement shall be brought in federal or state courts within the District of Connecticut.
- Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties hereto. The failure of either party to seek relief for the other party’s breach of any duty under this Agreement shall not waive any right of the non-breaching party to seek relief for any subsequent breach.
- Notices. All notices required or permitted under this Agreement shall be in writing, reference this Agreement and be deemed given one (1) day after deposit with a commercial overnight carrier for overnight delivery, with written verification of receipt. All communications to TOLUNA will be sent to the following address: Toluna USA, Inc., 21 River Road, Wilton, CT 06897, Attention: Legal Department.
- Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the others shall remain in full force and effect.
- No Third Party Beneficiaries. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.
- Neutral Construction. Each party warrants and represents that it has sought and received legal counsel of its own choosing with regard to the contents of this Agreement and the rights and obligations affected hereby. The parties agree that this Agreement shall be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a party or parties on the grounds that the party or parties drafted or was more responsible for drafting a provision(s).
- Entire Agreement. Each party to this Agreement acknowledges that this Agreement constitutes the entire Agreement of the parties with regard to the subject matter addressed in this Agreement, that this Agreement supersedes all prior or contemporaneous agreements, discussions, or representations, whether oral or written, with respect to the subject matter of this Agreement, and that this Agreement cannot be amended except by a writing signed by all parties hereto. Each party to this Agreement further acknowledges that no promises, representations, inducements, agreements, or warranties, other than those set forth herein, have been made to induce the execution of this Agreement by said party, and each party acknowledges that it has not executed this Agreement in reliance on any promise, representation, inducement or warranty not contained herein. The parties acknowledge that any estimates, projections, or forecasts provided to it by or on behalf of the other party are only estimates and are not representations that such estimates will be realized.
- Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.
- Prevailing Party. If any legal action or other proceeding is brought in order to enforce the terms of this Agreement or collect monies due, the prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs incurred in bringing such action or proceeding, in addition to any other relief to which such party may be entitled.