Snap Surveys Software and Services agreement
Between (i) Snap Surveys NH, Inc., dba Snap Surveys, a New Hampshire corporation with a principal place of business in Portsmouth, New Hampshire (hereinafter, Snap Surveys), and (ii) the person identified as the customer on the Order Form ('You').
These terms are intended for use with customers who will use the Snap Surveys Products and Services only for the purposes of their business, trade or profession, and by accepting these terms you confirm that this applies to your use.
This agreement includes terms which restrict Snap Surveys' liability to you -even in situations where Snap Surveys may have been negligent.
The full range of Snap Surveys products and services enables customers to undertake surveys and to analyze the data collected. The core program enables users to create survey questionnaires and to analyze the survey response data. A number of optional modules provide additional functionality, such as the ability to contact survey participants by e-mail and to collect the survey response data automatically through online questionnaires. The software is initially supplied on CD-ROM or another medium, and customers are issued with authorization codes to enable them to install the software on their own system.
Snap WebHost is an internet service which enables customers to use Snap Surveys' software and servers to manage online surveys and to collect, store and analyze the responses. Snap WebHost may also be purchased as a software product to be installed on a customer’s Web server.
Snap Surveys provides a support and updating service under its Snap Plus service. This is an optional service, but it is included free of charge during the initial 12 month warranty period.
A fuller description of the various elements of the Snap Surveys Products and Services is available on the Snap Surveys website: www.snapsurveys.com
1. Your order and the effect of this agreement
1.1. By submitting an Order Form you are offering to acquire the products and services described in that form on, and subject to, these terms.
1.2. This agreement takes effect when Snap Surveys accepts your order, which only occurs when it sends you an e-mail or a fax to that effect, or it supplies any software and services you have ordered. If Snap Surveys accepts your order by supplying any software or services, it does so only in respect of the products and services supplied. Snap Surveys' acceptance of your order takes place in Portsmouth, New Hampshire, or is deemed to take place there.
1.3. This agreement covers all aspects of the Snap Surveys Products and Services, and all issues arising out of their supply, non-supply, or use. It brings to an end, and supersedes, any pre-existing agreement between you and Snap Surveys concerning any aspect of the Snap Surveys Products and Services.
2. Installation of the software
2.1. If you are a new customer, you will install the Snap Product on Your System after Snap Surveys sends it and the related documentation to you. In both cases, Snap Surveys will provide you with authorization codes to enable you to install it. If you are an existing customer still within the Warranty Period, or you are covered by a current Snap Plus subscription, you will install the Snap Product on Your System from the CD-ROM or by downloading it and its documentation from the Snap Surveys website.
2.2. You may order additional optional modules at any time. Subject to availability, and depending on which module you order, Snap Surveys will: (i) provide you with authorization codes to enable you to download them from the Snap Surveys website and to install them on Your System, (ii) provide you with authorization codes to enable you to install the modules from the CD-ROM already issued to you, and/or (iii) send you a CD-ROM containing the optional modules (and any associated documentation) and provide you with authorization codes to enable you to install them.
3.1. Snap Surveys grants you a non-exclusive license to use those aspects of Snap WebHost you have subscribed to and to install and use the Snap Product on Your System, in each case for the purpose described on the Snap Surveys Website. This license is granted on and subject to the terms of this agreement and you agree to adhere to any conditions and restrictions.
3.2. You may only use any associated documentation in connection with the authorized use of the Snap Surveys Products and Services.
3.3. Only one user may use the Snap Surveys Products and Services at any one time unless some other restriction on the number of concurrent users is stated on the Order Form, in which case that restriction applies instead.
3.4. You may not:
(a) Make any copies of the Snap Product other than by way of installing and using it on your System at your premises.
(b) Use the Snap Product anywhere other than at your premises unless the Order Form states otherwise (e.g. by permitting your staff to use it while working for you from home).
(c) Use the Snap Product in any way, or on any computer system, which hinders or prevents the operation of any feature intended to help enforce any restriction, or which is likely to do so.
(d) Permit any person who is not a member of your staff (whether as an employee or a contractor) to use the Snap Product in any way, except that if you have ordered the relevant option you may permit third parties to use the optional modules known as KeyStation for the purpose of entering survey replies and Results Edition for the purpose of enabling them to view and analyze survey response data collected and held by you for them.
(e) Pass on any user name, password or authorization code to any person other than a member of your staff or the other persons described in Clause.3
(f) If the Snap Product enables you to host or operate a version of Snap WebHost, you may not provide that service to any person or entity that is not a direct member of your staff (whether as an employee, contractor or the like) other than to a customer in connection with, and ancillary and subsidiary to, a service you are providing to that customer.
(g) Alter or modify the Snap Product.
(h) Remove, change or obscure any product identification or notices of proprietary rights and restrictions which are in the Snap Product or on any CD-ROM or packaging containing the Snap Product.
(i) Decompile the Snap Product, unless all the conditions required to give you a statutory or other legal right to do so are met. Snap Surveys makes information needed for interoperability available, including by way of the Snap Interchange Format -a text file containing details of the content and formatting of questionnaires and acquired survey data.
(j) Combine the Snap Product with any other software unless you have written permission from Snap Surveys.
(k) Represent the Snap Surveys Products and Services as your own, or as anything other than the products and services of Snap Surveys.
(l) Allow the Snap Product to become the subject of any charge, lien or encumbrance without Snap Surveys' written permission.
3.5. Snap Surveys may change any aspect of the Snap Surveys Products and Services if it believes it is reasonably necessary to do so in order to avoid or reduce any infringement (or the likelihood of any infringement) of any Intellectual Property Rights of any third party. If Snap Surveys notifies you of such a change, and makes the update available to you free of charge, you will use the updated version and the license in Clause 3.1 only applies to that updated version.
4. Snap WebHost Subscription
4.1. Once you have installed the Snap Product you may subscribe to Snap WebHost at any time by submitting an Order Form. The subscription charge will be the then current standard charge for the subscription model you choose.
4.2. You are responsible for ensuring that you do not exceed any limits which apply to the subscription model you have chosen. If you do exceed them, that will constitute an irrevocable order for the cheapest subscription model with limits which are sufficient to cover your use, and if Snap Surveys accepts that order it will charge you (at its then current standard rates) for that subscription model. Alternatively, and at its sole option, Snap Surveys may require you to remedy your breach within 5 days or it may delete such of the Survey Material as it chooses so as to bring your use within the appropriate limits. (Snap Surveys need not require you to remedy your breach before deleting any Survey Material.)
4.3. Snap Surveys reserves the right to suspend the transmission of any e-mails and other data in order to keep the total amount of material being transmitted (including that being transmitted for other customers) within the capacity and limits of the Snap Surveys System.
4.5. Snap Surveys provides its services to many of its customers, and it may allocate its resources in the way it considers appropriate. Consequently your use of Snap WebHost may be slowed down or delayed at times of high demand.
4.6. If you purchase the Snap WebHost software and install it on your Web server, it is considered another component of the “Snap Software Product installed on Your system” and is governed by the terms and conditions contained herein.
5. Survey e-mails with Snap WebHost Subscription
5.1. You will ensure that you have all permissions required by law before you use Snap WebHost to send any e-mails to any person and you will provide copies of those permissions to Snap Surveys within 5 days of being asked to do so. 5.2. You will ensure that all e-mails you send using Snap WebHost:
(a) Start by identifying you as the sender and by making clear the commercial nature of the email.
(b) Include the following statement in the main body of the e-mail: 'You may choose not to receive any further e-mails of this kind from [your name] simply by replying to this e-mail with the word 'unsubscribe' in the subject box. There is no charge for doing this.'
(c) Include your full name and geographical address in the main body of the e-mail.
This information must be at least as prominent as any other text in the e-mail. Snap Surveys may change the detail of this requirement for purposes concerned with data protection, privacy or the regulation of the use of electronic communications by giving you written notice, and if it does you will ensure that any subsequent e-mails comply with that new requirement.
5.3. If any person asks that no more e-mails be sent to a specified e-mail address, whether by using the 'unsubscribe' process described in Clause
5.2. or otherwise, you will comply with that request promptly. Snap Surveys may also take such steps as it considers are appropriate to ensure that any such request is complied with.
6. Data Protection / Privacy
6.1. You are the data controller for any personal data in the Survey Material and Snap Surveys is acting as your data processor. Snap Surveys will only process that personal data in furtherance of this agreement.
6.2. You will comply with all Data Protection and Privacy Laws, and you will reimburse Snap Surveys for any losses, damages, costs (including legal costs) and expenses incurred by it, or awarded against it, as a result of or in connection with any breach of this Clause 6.2 by you.
7. Snap Plus
7.1. If you are covered by a Snap Plus subscription, Snap Surveys will issue you with a license and/or serial number and installation code to enable you to:
(a) use Snap Surveys' software updating service and telephone and e-mail support service
(b) access the online forum hosted on Snap Surveys' Website, where customers discuss their use of the Snap Surveys Products and Services
(c) participate in any of the training programmes advertised on the Snap Surveys Website -this is subject to the availability of places. Full details of these services are available from the Snap Surveys Website.
7.2. The Snap Plus benefits are available free of charge during the Warranty Period if you have completed and returned the user registration form accompanying the Snap Product.
7.3. You may benefit from Snap Plus after the end of the Warranty Period by submitting an Order Form and paying Snap Surveys' then current standard charge for the service. Snap Plus covers you for 12 months, and you may renew it for further periods. Cover starts from the earlier of: (i) the end of the Warranty Period if you subscribe before then; (ii) otherwise, the end of your then current Snap Plus cover if you subscribe before then; (iii) otherwise, when your username and password for the service is re-activated.
8. Charges and payment
8.1. Snap Surveys will issue an invoice for any charges due (and any applicable local tax, tariff, excise or other charge imposed on the sale of goods and services) following receipt of an Order Form.
8.2. You will pay Snap Surveys any charges due under this agreement so that it receives the payment in cleared funds within 30 days of receiving the relevant invoice. Time for payment is of the essence of this agreement.
8.3. If Snap Surveys does not receive any monies in cleared funds when it should:
(a) It may claim such monies as part of the price due under this agreement.
(b) It may charge interest on such monies from the due date for payment until the monies have been received in cleared funds. Interest accrues daily at the rate of 4% above the Prime Rate as established in the Wall Street Journal. If Snap Surveys obtains judgment, interest accrues at this rate before and after that judgment.
(c) It is not obliged to fulfil any of its obligations under this agreement until it does receive all the monies which are due, irrespective of whether it has already fulfilled some.
8.4. Snap Surveys may set off against any liability it has to you any payments due from you under this or any other agreement.
9. Intellectual Property Rights
9.1. All Intellectual Property Rights in the following belong to, and vest in, Snap Surveys: the Snap Surveys Products and Services; any associated documentation; all aspects of the Survey Material attributable to the Snap Product. You do not acquire any right or interest in or to any of these.
9.2. Subject to Clause 9.1, you retain all your Intellectual Property Rights in the Survey Material and you authorize Snap Surveys to use the Survey Material for the purpose of performing its obligations under this agreement or acting pursuant to this agreement.
10. Limited warranty
10.1. By their nature, computer programs cannot be guaranteed to be free from errors and defects. There may be errors and defects in any aspect of the Snap Surveys Products and Services, but during the Warranty Period Snap Surveys will take commercially reasonable steps to remedy any defects of which it is aware. For these purposes, the Snap Surveys Products and Services are defective if, while they are used in accordance with this agreement, they do not function substantially as described in the relevant descriptions on the Snap Surveys Website when this agreement takes effect.
10.2. Snap Surveys will exercise reasonable skill and care while performing any services.
10.3. Snap Surveys does not give any assurance that any aspect of the Snap Surveys Products and Services is designed to operate with, or be compatible with, any hardware or software other than that identified in the relevant descriptions on the Snap Surveys Website.
10.4. Snap Surveys does not give any assurance that any aspect of the Snap Surveys Products and Services is of any particular quality or fit for any purpose other than that described in the relevant descriptions on Snap Surveys' Website.
10.5. Snap Surveys does not give any assurance that the use of the Snap Surveys Products and Services will not infringe the rights of any third party, but Clause 11 applies in such circumstances.
10.6. Snap Surveys does not give any assurance concerning any aspect of the Snap Surveys Products and Services other than those stated in this agreement. Any terms concerning them which would otherwise be implied are excluded, whether they would be implied by virtue of any circumstances, the nature of the Snap Products and Services, any rule of law, any previous transactions between you and Snap Surveys, or any general commercial practices.
11. Infringement claims
11.1. Provided you comply with the Infringement Indemnity Conditions below, Snap Surveys will defend or settle any Infringement Claim brought against you at its own cost and expense. If Snap Surveys is unable to settle such a claim so as to enable you to continue using the Snap Surveys Products and Services, it will refund a fair and reasonable part of any charges you have paid in connection with those.
11.2. An Infringement Claim is any claim or action brought against you by a third party alleging that your use of the Snap Surveys Products and Services either infringes a United States copyright or a United States registered trade mark belonging to that third party, or is a breach of confidence owed to that third party by Snap Surveys.
11.3. The Infringement Indemnity Conditions are:
(a) You must notify Snap Surveys of any Infringement Claim of which you are aware as soon as reasonably practicable, and in any event within 30 days.
(b) You must not make any admission, or offer or accept any compromise or settlement, without written permission from Snap Surveys.
(c) You must allow Snap Surveys to conduct all litigation, negotiations and settlements, either in its own name or in yours (at Snap Surveys' option).
(d) You must give Snap Surveys any assistance it reasonably asks for in connection with any litigation, negotiations and settlements.
11.4. Snap Surveys' obligations under Clause 11.1 do not apply to the extent that the claim concerns your use or possession of anything other than the most recent version of Snap Surveys Products and Services available to you. For these purposes, a new version is deemed to be available to you 2 days after Snap Surveys gives notice pursuant to Clause 3.5.
11.5. Snap Surveys' obligations under Clause 11.1 cease, and are deemed never to have arisen, if at any time you fail to comply fully with any of the Infringement Indemnity Conditions. If this happens, you will reimburse any monies Snap Surveys has paid pursuant to that clause.
12. Restrictions of Snap Surveys' liability
12.1. Snap Surveys' directors, officers, employees and agents do not have any liability to you under this agreement, and they may each rely on and enforce this Clause 12.1.
12.2. Snap Surveys is not liable for any indirect or consequential loss or damage.
12.3. Snap Surveys is not liable for any loss of revenue, profit, goodwill or reputation, or for any damage to any of these.
12.4. Snap Surveys is not liable for any loss or corruption of any data on Your System to the extent it could have been avoided or reduced by your use of data backup procedures.
12.5. Snap Surveys is not liable for any loss or corruption of any data on the Snap Surveys System to the extent it could not have been avoided or reduced by the reasonable use of data backup procedures.
12.6. Except as described in Clause 11, Snap Surveys is not liable for any consequences of any claims or proceedings brought against you by any third party.
12.7. Snap Surveys' total liability for all loss, damage, expense and costs arising or incurred in connection with this agreement and any aspect of the Snap Surveys Products and Services or their delivery, nondelivery or use is limited to $10,000.00 in addition to a refund of a fair and reasonable part of any charges you have paid. This limit applies whether Snap Surveys' liability arises because it has not been excluded or restricted under any other term, or because Snap Surveys is unable to rely on such an exclusion or restriction. Snap Surveys is prepared to accept greater liability than this on appropriate commercial terms, but those terms must be agreed in writing and signed on behalf of Snap Surveys before the liability arises.
12.8. The exclusions and restrictions of Snap Surveys' liability in this agreement cover its liability on any legal or equitable basis for the loss, damage, expense, costs and other items described:
(a) even if they are of a kind which would arise in the ordinary course of things (b) even if they are of a kind which Snap Surveys is aware (or ought to be aware) could or would occur in the circumstances (c) however they might arise, even if they result from Snap Surveys' negligence or from other negligence for which it would otherwise be liable.
12.9. As special exceptions, Snap Surveys does not exclude or restrict its liability for any of the following:
(i) any breach of any obligations which may be implied (ii) any personal injury to anyone resulting from negligence; (iii) fraud.
13.1. By giving you at least 3 months' written notice, Snap Surveys may bring to an end all or any aspect of its obligations under this agreement -but not Your License. If it does so, it will refund a fair and reasonable part of any service charges (but not any software use charges) it has received.
13.2. By giving you written notice, Snap Surveys may bring to an end all or any aspect of Your License and/or its obligations under this agreement if:
(a) You are in breach of this agreement and that breach cannot be remedied.
(b) You remain in breach of this agreement more than 7 days after being notified: (i) that you are in breach, (ii) what the breach consists of, (iii) that you are required to remedy that breach.
(c) You: (i) are insolvent; (ii) are subject to an order or a resolution for your liquidation, administration, winding-up or dissolution (iii) have an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of your assets; (iv) enter into, or propose, any composition or arrangement with your creditors generally; or (v) are subject to any analogous event or proceeding in any applicable jurisdiction.
No minimum notice period is required.
13.3. By giving you written notice, Snap Surveys may bring to an end all or any aspect of Your License if, in its reasonable opinion, that is necessary in order to avoid any infringement of a third party's intellectual property rights. No minimum notice period is required. If Snap Surveys exercises its rights under this Clause 13.3, it will refund a fair and reasonable part of any charges you have paid in connection with the relevant Snap Surveys Products and Services.
13.4. If Snap Surveys exercises its rights under Clause 13.1 or 13.2:
(a) All payments due under this agreement become payable immediately. Snap Surveys may claim any such monies due to it as part of the price due under this agreement.
(b) The rest of this agreement continues to have full effect.
14. Events beyond Snap Surveys' control
Snap Surveys is not in breach of this agreement, or liable to you in any way whatsoever, for failing or being late to perform any obligation under this agreement to the extent that is due to a cause beyond its reasonable control (which includes anything which is your fault or which is within your control).
15.1. Each party will keep confidential any Confidential Information it acquires and will use that information only for the purposes of concluding this agreement and in furtherance of it. However, either party may disclose any Confidential Information it acquires: (i) in accordance with any legal requirement; (ii) in confidence to its lawyers for the purpose of obtaining legal advice; (iii) in confidence to those of its staff who are concerned with the negotiation or implementation of this agreement, but only to the extent that the individual needs to know the information and only after it has informed the individual both that the information is confidential and of its specific obligations under this clause 15.
15.2. A party will not record or copy any Confidential Information it acquires, nor incorporate or embody any of it in anything, without the other's permission.
15.3. A party may use and disclose any Confidential Information it acquires to the extent that: (i) it also acquires that particular information otherwise than in connection with this agreement or the supply, receipt or use of the Snap Surveys Products and Services, and it is otherwise entitled to use it; or (ii) that information has ceased to be confidential otherwise than as a consequence of that party's breach of this agreement.
15.4. Any use or disclosure of any Confidential Information by any member of a party's staff is deemed to be by that party.
16.1. To be valid, any notice given pursuant to this agreement must be in writing and must be sent by fax, e-mail or recorded delivery post using the contact details stated in the Order Form.
16.2. A properly served notice takes effect when it is available for reading by the recipient, except that a notice which first becomes available for reading after 5.00 pm (local time for the recipient) takes effect at 10.00 am (local time for the recipient) on the next business day (that is a day other than a Saturday or Sunday when the major local banks are open for general business).
17.1. Except where this agreement expressly provides otherwise, the written terms of this document record the entire agreement between you and Snap Surveys in connection with the Snap Surveys Products and Services and any other matters mentioned in this agreement. Neither party has relied on any representation which is not recorded here and both parties will refrain from claiming otherwise. This does not affect either party's liabilities or remedies for fraud.
17.2. An obligation to refrain from doing something (in whatever language that obligation is expressed) includes an obligation not to attempt or purport to do that thing.
17.3. Except where this agreement expressly provides otherwise, the remedies provided for in this agreement are in addition to the remedies provided by law or equity.
17.4. You will accept the performance of Snap Surveys' obligations by a third party.
17.5. Snap Surveys may assign the benefit of this agreement to a third party without consulting you, but Snap Surveys (or whoever the benefit of this agreement has been assigned to) will notify you of such an assignment, either before or after it occurs.
17.6. You may not assign any right, benefit or interest in or arising out of this agreement to any person, or hold any of these in trust for any person, without written permission from Snap Surveys.
17.7. Except where this agreement expressly provides otherwise, it does not give anyone other than you, Snap Surveys and any permitted assignees any right to enforce any of its terms. Each party is entitled to exercise its rights (if any) to rescind, terminate or vary this agreement without the consent of any third party and without informing any third party.
17.8. A party does not waive or otherwise forego its right to exercise or claim any right or remedy by reason of any delay in exercising or claiming that or any other right or remedy. Nor does it vary this agreement. The other party will not claim that such a delay or failure has such an effect.
17.9. If a court rules that any aspect of this agreement is illegal, void or unenforceable, the rest of it continues to have effect as if that aspect had been omitted. But if any such aspect would be lawful and enforceable if some part of it were modified, it applies with whatever modification is necessary to give effect, so far as is possible, to the commercial intention as recorded in this agreement.
17.10. Except where this agreement expressly provides otherwise, any amendment, waiver or variation of this agreement is not binding on either party unless it is set out in writing, is expressed to amend this agreement, and is signed on behalf of both parties.
17.11. This agreement is governed by the laws of the State of New Hampshire and both you and Snap Surveys will submit any disputes concerning or arising out of this agreement or any aspect of the Snap Surveys Products and Services, their delivery, non-delivery or use, to the exclusive jurisdiction of the New Hampshire courts. As an exception, Snap Surveys may apply to any court anywhere in the world for an order restraining your use of the Snap Surveys Products and Services in breach of this agreement, or following the termination of Your License, and may enforce any such order.
18.1. The following words and phrases have the following meanings:
'Confidential Information': all information which: (i) one party acquires in connection with this agreement or the supply, receipt or use of the Snap Surveys Products and Services, (ii) which concerns the business, technology or affairs of the other, (iii) is confidential when it is acquired, and (iv) the party acquiring it ought to appreciate its confidentiality. This applies equally to information received before or after the date this agreement takes effect.
'Data Protection Laws': any applicable law concerning data protection, privacy or the use of electronic communications so far as it applies to your use of the Snap Surveys Products and Services.
'Intellectual Property Rights': all patents, copyrights, design rights, trade marks, trade secrets, know-how, database rights, rights in performances, obligations of confidence and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the registration of any of these anywhere in the world.
'Snap Product': the software you have ordered and which Snap Surveys has supplied or agreed to supply, including any updates to that software made available to you pursuant to this agreement.
'Order Form': a completed paper or electronic order in the form provided by Snap Surveys.
'Services': the services provided by Snap Surveys pursuant to this agreement, including Snap WebHost, the Snap Plus Services, and any associated services.
'Snap Plus Services': the services identified in Clause 7 and described further on the Snap Surveys Website.
'Snap Surveys Products and Services': the software and services which Snap Surveys has agreed to supply to you, or which it has supplied to you.
'Snap Surveys System': the computer systems, internet connections and associated systems and facilities used by Snap Surveys in connection with the Snap Surveys Products and Services.
'Snap Surveys Website': the website operated by Snap Surveys at www.snapsurveys.com.
'Survey Material': any materials (including data, text and images) created or acquired through your use of the Snap Surveys Products and Services.
'Warranty Period': the period of 12 months commencing when this agreement takes effect.
'Your License': the license described in Clause 3 above.
'Your System': the computer system you use in connection with the Snap Surveys Products and Services.
18.2. The terms 'data controller' 'data processor' 'personal data', and 'process' have the same meanings as in any applicable law concerning data protection.
18.3. References to you or Snap Surveys include any permitted successors and assigns.
18.4. References to statutory provisions include those statutory provisions -and any subordinate legislation -as it may be amended or re-enacted from time to time.
18.5. The use of 'will' denotes an obligation.
18.6. The use of the word 'including' and the phrase 'in particular' are only intended to illustrate specific examples. The use of these words and examples does not restrict the scope of any term of this agreement in any way whatsoever.
18.7. Where used as a reference to a contractual provision, 'term' includes conditions, warranties and other terms of any nature whatsoever.
18.8. References to any gender include all genders.
18.9. Words in the singular include the plural and words in the plural include the singular.
18.10. Any provision of this agreement is a continuing one, and notwithstanding the use of the present tense it is not limited to the time at which this agreement is made.
18.11. The headings in this agreement are for ease of reference only and do not affect its interpretation.