This License Agreement was effective until 10th May 2018. The current version of this License Agreement is available here
This Agreement is between (i) Snap Surveys NH, Inc., a New Hampshire corporation with an address of 210 Commerce Way, Suite 200, Portsmouth, NH 03801, USA (“Snap Surveys“) and (ii) the business entity identified as the customer on the Order Form (the “Customer“) and governs the use of the Software and Services that Snap Surveys has agreed to make available to the Customer, as set out in the Order Form.
By executing a document which references this Agreement, clicking on a button indicating the Customer’s acceptance of this Agreement, installing or using the Software, or using the Services, the Customer confirms that it has read and understood and agrees to the terms and conditions of this Agreement.
In accepting this Agreement the Customer confirms that:
(a) it will only use the Software and the Services for business use, and it is not purchasing the Software or the Services as a consumer; and
(b) if the Customer is a corporate body, partnership, organization or other business entity, the individual who agrees to this Agreement on the Customer’s behalf has the authority to bind the Customer to this Agreement, and both the Customer and such individual confirm and warrant that this is the case.
Snap Surveys and the Customer agree as follows:
1. DEFINITIONS
1.1 In this Agreement, the following words and phrases shall have the following meanings:
Affiliate: each and any subsidiary or holding company of a party and each and any subsidiary of a holding company of a party.
Agreement: the terms and conditions of this Software License and Services Agreement, together with the terms of the Order Form.
Acceptable Use Policy: the Snap Surveys Acceptable Use Policy, available at https://www.snapsurveys.com/survey-software/acceptable-use-policy-us/, as such document may be amended by Snap Surveys from time to time.
Activation Email: the email sent to the Customer confirming that the Customer’s WebHost Account has been activated and providing account access details, and/or providing a download link to and installation code for the Snap Professional Software.
Associate User: an individual who has been given access by a Researcher to input Survey Data into and/or to view or analyse Survey Data held in their WebHost Account.
Confidential Information: information disclosed by one party to the other, whether before or after the Effective Date, that the recipient should reasonably understand to be confidential, including information identified as Confidential Information in clause 11.
Customer’s System: the computer system and network used by the Customer in connection with the Software and the Services.
Data Protection Laws: all applicable laws and regulations relating to the processing of personal data or personally identifiable information, privacy and/or the use of electronic communications in any applicable jurisdiction.
Documentation: the documentation, help files, user manuals, handbooks and information made generally available by Snap Surveys to its Customers from time to time which describes the Software or the Services, but excluding marketing literature.
Effective Date: the date on which Snap Surveys sends the Activation Email to the Customer, unless a different date is stated in the Order Form.
Fees: the fees payable by the Customer to Snap Surveys for the use of the Software and the Services as set out in the Order Form.
Hosting Provider: the third party server hosting and network infrastructure provider selected by Snap Surveys from time to time.
Hosting Services: the services that Snap Surveys provides to allow Researchers to access and use Snap WebHost through their WebHost Account.
Initial Term: 12 months from the Effective Date, unless a different Initial Term is set out in the Order Form.
Intellectual Property Rights: all patents, copyrights, rights in designs, trade marks, trade secrets, rights in confidential information and know-how, database rights and all other rights in the nature of intellectual property rights (whether registered or unregistered) and all rights to apply for and applications for the registration of any of these anywhere in the world.
Order Form: a completed paper or electronic order in the form provided by Snap Surveys, which sets out details of the Customer’s order for the Software and Services or, in the case of renewals, a completed form or a Snap subscription renewal email from Snap Surveys setting out those elements of the Software and/or Services which are being renewed.
Privacy Policy: Snap Surveys’ Privacy Policy, available at https://www.snapsurveys.com/survey-software/privacy-policy-us/, as such document may be amended by Snap Surveys from time to time.
Renewal Period: the period described in clause 15.1.
Researchers: employees of the Customer who are authorized by the Customer to use the Software and the Hosting Services.
Respondents: those individuals responding to surveys.
Results: the data and reports generated through the use of the Software and the Services to carry out surveys.
Server: the multitenant server environment, managed by the Hosting Provider on behalf of Snap Surveys, where Snap Surveys hosts Snap WebHost.
Services: the Hosting Services and the Snap Plus Services that are described in the Order Form.
Snap Mobile Anywhere: Snap Surveys’ proprietary Snap Mobile Anywhere software application, including any Updates provided to the Customer, which enables the collection of survey responses using devices and kiosks.
Snap Plus Service Level Agreement: Snap Surveys’ current Snap Plus Service Level Agreement for providing support and maintenance, available at https://www.snapsurveys.com/survey-software/snap-plus-service-level-agreement-us/, as such document may be amended by Snap Surveys from time to time.
Snap Plus Services: the maintenance and support services described in the Snap Plus Service Level Agreement.
Snap Professional: Snap Surveys’ proprietary Snap Professional software as further described in the Documentation, including any Updates provided to the Customer, which enables users to create survey questionnaires and analyse survey response data.
Snap Unit: a survey response or 1Mb (or part thereof) of attachment uploaded with a survey response.
Snap WebHost: Snap Surveys’ proprietary Snap WebHost online software application, hosted on the Server, including any Updates installed on the Server, which enables users to manage surveys and to collect, store and analyse the responses online. This software is also available as a software product for installation on a customer’s own server, and where this applies it is considered a component of the Software in this Agreement.
Software: the software listed on the Order Form, which may include Snap Professional, Snap WebHost, Snap Mobile Anywhere and any other proprietary software of Snap Surveys.
Survey Data: the data (including data contained in file attachments) input by the Customer, Researchers, Associate Users, Respondents or any party on their behalf in the course of using the Software and the Services.
Term: the Initial Term together with any Renewal Periods.
Update: any update or upgrade of the Software available on general commercial release.
WebHost Account: the Snap WebHost accounts accessible at https://www.snapsurveys.com/login/ purchased by the Customer to entitle Researchers to access the Software and the Hosting Services.
WebHost User Terms: the Snap Surveys WebHost User Terms, available at https://www.snapsurveys.com/survey-software/webhost-terms-of-use-us/, as such document may be amended by Snap Surveys from time to time.
Website: the website operated by Snap Surveys at https://www.snapsurveys.com/.
2. ORDER FOR THE SOFTWARE AND SERVICES
2.1 The Order Form sets out the details of the Software and Services which the Customer wishes to use and is the Customer’s offer to acquire such Software and Services from Snap Surveys. If Snap Surveys accepts the Customer’s order, it will send an Activation Email to the Customer, at which point this Agreement will come into effect. Acceptance of the Customer’s order takes place, or is deemed to take place, in Portsmouth, New Hampshire.
2.2 On receipt of the Activation Email the Customer will be able to download Snap Professional and install it on the Customer’s System, and/or access the WebHost Account(s). The Customer will be asked to confirm its acceptance to these terms and conditions on downloading the Software.
2.3 If the Customer decides within 30 days of receiving the Activation Email that it is not satisfied with the Software or the Services, the Customer may be able to claim a refund of the Fee. Further details of the Customer’s rights are set out in clause 8.2.
3. RIGHTS TO USE THE SOFTWARE AND THE SERVICES
3.1 Snap Surveys hereby grants to the Customer a non-exclusive, non-transferable right:
(a) to permit the agreed number of Researchers to concurrently use the Hosting Services in order to access and use Snap WebHost;
(b) to install and use Snap Professional on the Customer’s System;
(c) to use Snap Mobile Anywhere in accordance with the agreed number of connections;
(d) to install and use any other Software as described in the Order Form;
(e) to use the Documentation solely in connection with the Customer’s authorized use of the Software and the Services
in each case during the Term for its internal business purposes only and subject to the terms and conditions of this Agreement.
3.2 All use of the Software and the Services is subject to the terms of the Acceptable Use Policy, which is incorporated into this Agreement by reference. The Customer agrees to comply with, and shall ensure that all users of the Software and/or the Services comply with, the Acceptable Use Policy.
3.3 The Customer may install and use on the Customer’s System as many copies of Snap Professional as are set out in the Order Form. If the Customer has purchased one or more single user licenses, Snap Professional may only be installed once for each user as set out in the Order Form. If the Customer has purchased a concurrent user license then one copy of the network element of the software, and any number of the client installation element of the software may be installed. The number of concurrent users that can use Snap Professional at any one time is set out in the Order Form.
3.4 Each Snap Mobile Anywhere connection listed on the Order Form entitles the Customer to concurrently connect a device on which Snap Mobile Anywhere is installed to Snap WebHost. Use of Snap Mobile Anywhere is subject to any additional terms contained in any click wrap license contained within the product.
3.5 In addition, the Customer may make up to two copies of Snap Professional for back-up purposes only. For the avoidance of doubt, this clause does not limit the Customer’s ability to download and make multiple copies of the Survey Data.
3.6 From time to time Snap Surveys may notify the Customer that an Update to the Software is available and the Customer shall install the relevant Update.
3.7 The Software may include a feature to automatically check the Website for Updates and to automatically download relevant Updates. If the Customer uses this feature, certain information will be collected and recorded by Snap Surveys including information regarding the operating systems used by the Customer. The feature will not collect Survey Data.
3.8 The Customer shall not:
(a) except as permitted by law:
(i) attempt to copy (subject to clauses 3.3, 3.4 and 3.5), adapt, alter, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any part of the Software and/or the Documentation in any form or media or by any means; or
(ii) attempt to decompile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Software; or
(iii) combine the Software with other software;
(b) access or use all or any part of the Services, Software or Documentation in order to build a product or service which competes with the Services, Software or Documentation;
(c) use the Services, Software or Documentation to provide services to third parties (save that the Customer may perform data collection and reporting activities on behalf of its clients);
(d) misuse the Services by interfering with their normal operation, or attempting to access them other than through the interfaces and instructions provided by Snap Surveys;
(e) license, sublicense, sell, rent, lease, transfer, assign, distribute, disclose or otherwise dispose of or grant rights in the whole or part of the Services, Software and/or Documentation to any third party;
(f) remove any copyright or proprietary notice from the Software or the Documentation; or
(g) allow the use of the Software, Services or Documentation by any person other than the Customer’s employees.
4. SNAP WEBHOST
4.1 The number of concurrent Researchers is set out on the Order Form. All Researchers will be provided with access to a WebHost Account and must agree to the WebHost User Terms in order to use the Hosting Services and access Snap WebHost.
4.2 The Researcher may grant access to Associate Users to enable them to input Survey Data into and/or to view or analyse Survey Data held in that Researcher’s WebHost Account, by providing them with an Associate User username and password. The rights of the Associate User do not extend to any other rights to use the Software, Services or Documentation. The number and type of Associate Users are set out on the Order Form. Each Associate User must agree to any applicable WebHost User Terms required for their use of the Services.
4.3 The Customer may purchase additional WebHost Account logins if further concurrent Researchers are required, or additional Associate User rights, at Snap Surveys’ then current prices.
4.4 The Customer is responsible for all activity occurring in its WebHost Accounts. The Customer shall ensure that:
(a) each Researcher keeps the username and password for their use of Snap WebHost confidential;
(b) each Associate User keeps the username and password allocated to them confidential;
(c) it maintains an up to date list of current Researchers and Associate Users and shall provide the list to Snap Surveys within 7 days of Snap Surveys’ request; and
(d) the Researchers and the Associate Users use the Services and the Software in accordance with the terms of this Agreement and the Customer shall be responsible for any Researcher’s or Associate User’s breach of this Agreement (including any breach of the Acceptable Use Policy).
4.5 The Order Form contains details of the number of Snap Units purchased. The Customer may purchase additional Snap Units on request. Should the Customer exceed the number of Snap Units purchased Snap Surveys will contact the Customer to agree the number of additional Snap Units to be purchased to cover the additional Snap Units used and any further anticipated use by the Customer and/or will immediately issue an invoice to the Customer for the additional Snap Units used in accordance with Snap Surveys’ then current prices.
4.6 The Customer is able, at any time during the Term, to download the Survey Data from its WebHost Account(s), and the Customer is encouraged to do so on a regular basis.
4.7 Attachments uploaded using the file attachment feature in Snap WebHost will, unless deleted by the Customer, be stored in a WebHost Account for 12 months, following which Snap Surveys reserves the right to delete such attachments from the Server. If the Customer is likely to require continued access to the attachments after that time period, Snap Surveys recommends that the Customer downloads them and stores them on the Customer’s System before the 12 months expires.
5. HOSTING SERVICES
5.1 Snap Surveys shall, during the Term, provide the Hosting Services on and subject to the terms and conditions of this Agreement.
5.2 The hosting of Snap WebHost shall be carried out by the Hosting Provider on the Server. Snap Surveys shall ensure that the hardware and supporting systems are continually monitored and service checked for faults.
5.3 The Hosting Provider monitors the Server 24 hours per day and 7 days per week by video surveillance and ensures that only authorized personnel have access to the Server.
5.4 Data held on the Server is backed-up by the Hosting Provider on a regular basis with a full weekly back-up and daily incremental back-ups.
5.5 The Customer shall be responsible for arranging and maintaining its network connections and telecommunications links from its systems to the Server, and shall be responsible for all problems, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet. The Customer shall ensure that the Customer’s System complies with the relevant specifications provided by Snap Surveys from time to time.
5.6 The Customer acknowledges that while Snap Surveys will endeavor to provide the best possible level of performance to all users of the Services at all times, its use of the Hosting Services may be slowed or delayed at times of high demand.
5.7 Snap Surveys shall use commercially reasonable endeavors to ensure that the Hosting Services are available 24 hours per day and 7 days per week, (except for planned maintenance carried out at times of low load on the Server), but Snap Surveys makes no guarantees as to availability and shall have the right to restrict access to the Hosting Services at any time where Snap Surveys believes that this is necessary.
5.8 Snap Surveys shall make reasonable efforts to provide the Customer with advance notice of any planned maintenance by email and/or by means of notification on the Snap Surveys Website.
6. SNAP PLUS
6.1 During the Term, and subject to the Customer having installed all relevant Updates, Snap Surveys shall provide the Customer with the Snap Plus Maintenance and Support Services described in the Order Form in accordance with Snap Survey’s then current Snap Plus Service Level Agreement, which is incorporated into this Agreement by reference.
7. DATA
7.1 Snap Surveys shall, in providing the Services, comply with its Privacy Policy and the Customer agrees to the use of any information provided to it by the Customer other than the Survey Data (for example contact details provided as part of account set up or for billing or administrative purposes) in accordance with the Privacy Policy. This includes use of such information to provide the Customer with newsletters and other relevant advertising. The Customer may opt-out of receiving such marketing information at any time by contacting Snap Surveys at privacy@snapsurveys.com.
7.2 The Customer also consents to:
(a) Snap Surveys collecting and using technical information about any devices on which the Software is installed (and how often the Software is opened on those devices) and related software, hardware and peripherals for the Services which are internet based; and
(b) Snap Surveys’ transmission, collection, maintenance, processing and use of location data sent from any devices on which the Software is installed
in order to improve Snap Surveys’ products and to provide the Services.
7.3 All rights, title and interest in and to the Survey Data shall be owned by the Customer. The Customer shall be solely responsible for the legality, reliability, integrity, accuracy and quality of the Survey Data, and shall ensure that it has all rights and permissions required to use the Survey Data in connection with the Software and the Services.
7.4 The Customer acknowledges that Snap Surveys may store, back-up, view, and archive the Survey Data with, and disclose the Survey Data to, its Affiliates or the Hosting Provider under this Agreement.
7.5 Snap Surveys does not have knowledge of the content of the Survey Data, including its quantity, value or use. Save for the back-up services described at clause 7.6, the Customer is responsible for taking all reasonable steps to mitigate the risks inherent in the provision of the Services, including data loss. Snap Surveys encourages the Customer to download the Survey Data from its WebHost Account at regular intervals.
7.6 The Survey Data on the Servers shall be backed up at least every 24 hours. In the event of any loss or damage to the Survey Data, the Customer’s sole and exclusive remedy shall be for Snap Surveys to use reasonable commercial endeavors to restore the lost or damaged Survey Data from the latest successful back-up of such Survey Data. Snap Surveys shall not be responsible for any loss, destruction, alteration or disclosure of Survey Data caused by any third party (except its Affiliates or the Hosting Provider). The Customer is responsible for backing up all Survey Data that it has exported from the Server.
7.7 The Survey Data may from time to time include personal data. The parties acknowledge and agree that if Snap Surveys processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Customer shall be the data controller and Snap Surveys shall be a data processor.
7.8 Snap Surveys shall and shall ensure that its Affiliates and the Hosting Provider shall process any personal data contained within the Survey Data solely in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time.
7.9 The Customer acknowledges and agrees that the personal data may be transferred or stored outside the country where the Customer and the Researchers are located in order to carry out the Services and Snap Surveys’ other obligations under this Agreement.
7.10 The Customer will ensure that:
(a) it complies with all applicable Data Protection Laws (including without limitation in relation to the sending of emails to Respondents) and Section 4 of the Acceptable Use Policy;
(b) it is entitled to transfer the relevant personal data as envisaged under this Agreement so that Snap Surveys, its Affiliates and the Hosting Provider may lawfully use, process, store and transfer the personal data in accordance with this Agreement on the Customer’s behalf; and
(c) all relevant third parties (including Respondents) whose personal data may be contained in the Survey Data have been informed of, and have given their consent to, such use, processing, storage and transfer as required by all applicable Data Protection Laws;
and the Customer shall 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 by the Customer.
7.11 Each party shall (having regard to the state of technological development and the cost of implementing any measures) take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
7.12 The Customer acknowledges and agrees that the Survey Data and the Results will be transmitted over the internet, which by its nature is, even when encrypted, never completely secure.
8. SNAP SURVEYS’ OBLIGATIONS
8.1 Snap Surveys undertakes that the Services will be performed with reasonable skill and care.
8.2 If, at any time within 30 days of the Effective Date, the Customer is not satisfied with the Software or the Services, Snap Surveys shall refund the Fees paid to it, provided that the Customer:
(a) notifies Snap Surveys in writing that it wishes to claim a refund;
(b) returns any items delivered to it to Snap Surveys’ offices; and
(c) provides a certificate confirming either that the Software has never been installed or that it has been de-installed from the Customer’s System, on the headed paper of the Customer signed by an authorized signatory
and this Agreement shall terminate.
8.3 Notwithstanding the foregoing, Snap Surveys:
(a) does not warrant that the Customer’s use of the Software or the Services will be uninterrupted, error-free or completely secure;
(b) does not give any assurance that any aspect of the Services or the Software is designed to operate with, or be compatible with, any hardware or software; and
(c) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.4 The Software and the Services are subject to continual improvement and development. In the majority of cases such changes add increased features and functionality to the Software and Services, however Snap Surveys may also alter or remove features or functionality from the Software and/or Services. Where such a change will materially impact the Customer’s use of the Software and/or Services, Snap Surveys shall endeavor to give the Customer prior notice of the change (by email or by posting a notice on the Website) and the Customer may terminate this Agreement on giving written notice.
9. THE CUSTOMER’S OBLIGATIONS
9.1 The Customer shall:
(a) supervise and control the use of the Software, Services and Documentation and be responsible for all acts and omissions of the Researchers, Associate Users and Respondents;
(b) prevent any unauthorized access to, or use of, the Software, Services and/or Documentation and immediately notify Snap Surveys in the event of of any unauthorized access or use. The Customer shall be responsible for the consequences of any such unauthorized access or use; and
(c) provide Snap Surveys with all necessary access to such information as may be required by it in order to provide the Services.
9.2 The Customer shall comply with all applicable laws and regulations with respect to its use of the Software and the Services. Where industry-specific regulations apply to the Customer’s use of the Software or the Services:
(a) the Customer will be solely responsible for such compliance, and shall not use the Software or the Services in any manner which would subject Snap Surveys to such industry-specific regulations without obtaining Snap Surveys’ prior written agreement, which may be given in its absolute discretion; and
(b) Snap Surveys may from time to time designate categories of information (in the Acceptable Use Policy or elsewhere) that may not be used in conjunction with the Software or the Services owing to the industry-specific regulations engaged by the handling of such information. For example, the Customer may not use the Services to handle ‘protected health information’ as described under the U.S. Health Insurance Portability and Accountability Act of 1996 (also known as HIPAA).
9.3 The Customer shall not access, store, distribute or transmit any viruses or other contaminating code, or any material during the course of its use of the Software or the Services that Snap Surveys reasonably believes is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, offensive or which is otherwise malicious fraudulent or morally unacceptable, or facilitates illegal activity, depicts sexually explicit images, exploits minors or promotes unlawful violence, or is discriminatory based on race, ethnicity, gender, colour, age, religious belief, sexual orientation or disability, and Snap Surveys reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
9.4 The Customer shall not use the Software or the Services in any manner which would cause Snap Surveys to breach any applicable export or import control laws, rules or regulations of any jurisdiction.
9.5 The Customer acknowledges that:
(a) it is its responsibility to ensure that the Services, the Software and the Documentation meet its requirements; and
(b) the Results are based on information provided by the Customer, its Researchers, Associate Users and Respondents and that Snap Surveys will not undertake any direct verification of the information provided or the Results generated. The Customer assumes sole responsibility for the Results obtained and for any conclusions drawn and actions taken on the basis of the Results.
10. CHARGES
10.1 The Customer shall pay all applicable Fees to Snap Surveys for the use of the Software and the Services.
10.2 Subject to clause 10.4, the Fees for the Initial Term are the fees set out in the Order Form. Snap Surveys shall issue an invoice for the Fees on or prior to the Effective Date and the Fees for the Initial Term shall be due within 30 days of the Effective Date.
10.3 For any Renewal Period, Snap Surveys shall invoice the Customer at least 30 days prior to each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period. Fees for any Renewal Period shall be due on the date specified on the relevant renewal Order Form.
10.4 If the Customer incurs additional Fees during the Initial Term or any Renewal Period, for example as a result of:
(a) purchasing additional WebHost log ins; or
(b) use of additional Snap Units beyond the agreed limit
Snap Surveys shall be entitled to issue an invoice for those Fees as soon as they are incurred and the Customer shall pay such invoice within 30 days of the invoice date.
10.5 Snap Surveys shall be entitled to increase any element of the Fees at the start of each Renewal Period upon at least 30 days’ prior notice to the Customer.
10.6 If Snap Surveys has not received payment by the due date, and without prejudice to any other rights and remedies of Snap Surveys:
(a) Snap Surveys may, without liability to the Customer, suspend or disable the Customer’s WebHost Account(s) and access to all or part of the Services and/or the Software and Snap Surveys shall be under no obligation to provide any or all of the Services or rights to use the Software while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the Prime Rate as established in the Wall Street Journal from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.7 Further, where a Customer has exceeded the number of Snap Units purchased and has not responded to any communication by Snap Surveys pursuant to clause 4.5 regarding the purchase of additional Snap Units, Snap Surveys may, without liability to the Customer, suspend or disable the Customer’s WebHost Account(s) and access to all or part of the Services and/or the Software and Snap Surveys shall be under no obligation to provide any or all of the Services or rights to use the Software until the purchase of further Snap Units is agreed.
10.8 Snap Surveys shall be entitled, at its expense, to audit the Customer’s use of the Services and the Software to confirm the Customer’s compliance with this Agreement. If any audit reveals that the Customer has underpaid any Fees to Snap Surveys (whether in relation to the number of concurrent Researchers, the number of Snap Units used, the number of copies of the Software installed or otherwise) the Customer shall pay to Snap Surveys an amount equal to such underpayment within 10 days of the date of the relevant audit.
10.9 All amounts and fees stated or referred to in this Agreement shall be payable in US dollars and are exclusive of any taxes associated with the sale of the Software and/or Services, which shall be added to Snap Surveys’ invoice(s) at the appropriate rate.
11. CONFIDENTIALITY
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall, and shall ensure that its employees, agents and (in the case of the Customer) Researchers and Associate Users shall, hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party (other than, in the case of Snap Surveys, its Affiliates or the Hosting Provider), or use the other’s Confidential Information for any purpose other than as permitted by this Agreement.
11.3 The Customer acknowledges that details of the Services, the Software and the Documentation constitute Snap Surveys’ Confidential Information.
11.4 Snap Surveys acknowledges that the Survey Data is the Confidential Information of the Customer.
11.5 This clause 11 shall survive termination of this Agreement, however arising.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in the Services, the Software and the Documentation and any developments made to them belong to Snap Surveys and/or its licensors. The Customer does not acquire any right or interest in or to these and shall only use the Services, the Software and the Documentation in accordance with the terms of this Agreement.
12.2 All Intellectual Property Rights in the Survey Data are owned by the Customer and the Customer authorizes Snap Surveys to use the Survey Data for the purposes of performing its obligations under this Agreement.
13. INDEMNITY
13.1 The Customer shall defend, indemnify and hold harmless Snap Surveys and its Affiliates against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the use of the Services, Software and/or Documentation by or on behalf of the Customer (including without limitation by the Researchers, Associate Users and Respondents), provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Snap Surveys provides reasonable cooperation to the Customer in the defense and settlement of any such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim (provided that no settlement may be made which involves an admission of liability on the part of Snap Surveys without its prior written consent (not to be unreasonably withheld or delayed)).
13.2 Snap Surveys shall defend the Customer against any claim that the Services or the Software infringes any United States copyright or United States trade mark of a third party, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Snap Surveys is given prompt notice of any such claim;
(b) the Customer provides reasonable cooperation to Snap Surveys in the defense and settlement of any such claim, at Snap Surveys’ expense; and
(c) Snap Surveys is given sole authority to defend or settle the claim (provided that no settlement may be made which involves an admission of liability on the part of the Customer without its prior written consent (not to be unreasonably withheld or delayed)).
13.3 If at any time a claim of infringement of third party Intellectual Property Rights is made, or in Snap Surveys’ opinion is likely to be made, in relation to the Software and/or the Services, Snap Surveys may, at its sole discretion, procure the right for the Customer to continue using the Services or the Software, replace or modify the Services or Software so that they become non-infringing or terminate this Agreement (or any part of it) on 5 days’ notice to the Customer without any additional liability or obligation to pay additional costs to the Customer.
13.4 In no event shall Snap Surveys, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services, Software or Documentation by anyone other than Snap Surveys;
(b) the Survey Data;
(c) the Customer’s use of the Services, Software or Documentation in a manner contrary to the instructions given to the Customer by Snap Surveys;
(d) use by the Customer of anything other than the most recent version of the Software and/or Services made available to it by Snap Surveys, including all relevant Updates; or
(e) the Customer’s use of the Services, Software or Documentation after receiving notice of the alleged or actual infringement from Snap Surveys or any appropriate authority.
14. LIMITATION OF LIABILITY
14.1 This clause 14 sets out the entire financial liability of Snap Surveys (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with this Agreement;
(b) in respect of any use made by the Customer of the Software, Services and Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
14.2 Except as expressly and specifically provided in this Agreement:
(a) all warranties, representations, conditions and all other terms of any kind whatsoever (including without limitation as to merchantability, satisfactory quality, fitness for a particular purpose or non-infringement) implied by statute or common law or otherwise are, to the fullest extent permitted by applicable law, excluded from this Agreement;
(b) the Software, the Services and the Documentation are provided to the Customer on an “as is” basis; and
(c) Snap Surveys shall have no liability for:
(i) any unauthorized access to the Survey Data or the unauthorized use of the Software or the Services unless the unauthorized access or use results from Snap Surveys or the Hosting Provider’s failure to meet the obligations set out in clause 5.2, 5.3 or 5.4;
(ii) any damage caused by errors or omissions in any information, instructions or scripts provided to it by the Customer in connection with the Services or the Software, or any actions taken by Snap Surveys at the Customer’s direction; or
(iii) any loss or damage which results from use by the Customer of anything other than the most recent version of the Software and/or Services made available to it by Snap Surveys, including all relevant Updates.
14.3 Nothing in this Agreement excludes the liability of Snap Surveys for:
(a) death or personal injury caused by Snap Surveys’ negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be excluded or limited by law.
14.4 Subject to clause 14.2 and clause 14.3:
(a) Snap Surveys shall not be liable whether in contract, misrepresentation (whether innocent or negligent), tort (including negligence or breach of statutory duty), restitution or otherwise for any:
(i) loss of profits;
(ii) loss of business;
(iii) damage to goodwill and/or similar losses;
(iv) loss of anticipated savings;
(v) loss of use of systems;
(vi) (subject to clause 7.6) loss or corruption of data or information;
(vii) costs of procuring or migrating to substitute software or services; or
(viii) any special, indirect or consequential or pure economic loss, costs, damages, charges or expenses
however arising under this Agreement; and
(b) Snap Surveys’ total aggregate liability in contract, misrepresentation (whether innocent or negligent), tort (including negligence or breach of statutory duty), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees due to Snap Surveys during the 12 months immediately preceding the date on which the claim arose.
15. TERM AND TERMINATION
15.1 This Agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Agreement shall be renewed for successive periods of 12 months (each a “Renewal Period”) if both parties so agree.
15.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Agreement (or additionally, in the case of the Customer, the Acceptable Use Policy) which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party is unable to pay its debts when due; or becomes insolvent or bankrupt; or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction); or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets; or enters into, or proposes, any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction; or
(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.3 In addition to its rights to terminate under clause 15.2(a), Snap Surveys may, if it reasonably considers that the Customer is in breach of this Agreement or the Acceptable Use Policy and without liability to the Customer, suspend or disable the Customer’s WebHost Account(s) and access to all or part of the Services and/or the Software and Snap Surveys shall be under no obligation to provide any or all of the Services or rights to use the Software until the breach has been remedied.
15.4 On termination of this Agreement for any reason:
(a) all payments due under this Agreement shall become payable immediately. Where Snap Surveys exercises its right to terminate, no refunds shall be due for any pre-paid Fees;
(b) the Customer shall immediately cease all use of the Software, Services and the Documentation and uninstall all copies of the Software from the Customer’s System. The Customer shall provide a certificate of de-installation to Snap Surveys on request;
(c) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; and
(d) Snap Surveys may destroy or otherwise dispose of any of the Survey Data remaining in the Customer’s WebHost Account(s) unless Snap Surveys receives, no later than 7 days after the date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Survey Data. Snap Surveys shall deliver the back-up to the Customer in a data format supported by the Software within 30 days of its receipt of the written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination. The Customer shall pay all reasonable expenses incurred by Snap Surveys in delivering the back-up of the Survey Data.
16. GENERAL
16.1 Any notice required to be given under this Agreement will be in writing, and be delivered to the address of the parties set out in the Order Form, or such other address as a party may designate. Notice may be delivered by personal delivery, courier, registered mail or email. Notices given by email shall be sent to Snap Surveys at legal@snapsurveys.com. The delivery of a notice will be deemed effective upon receipt, if delivered personally or by courier, or 5 business days from sending, if delivered by registered mail, or on successful transmission, if sending by email.
16.2 Snap Surveys shall not be liable to the Customer for any failure to perform or delay in performance under this Agreement to the extent that such non-performance or delay is caused by any circumstances beyond its reasonable control. If any period of failure or delay lasts for more than 60 days the Customer shall be entitled to terminate this Agreement by notice in writing.
16.3 Any failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not be construed as a waiver of that or any other right or remedy. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16.4 If any provision of this Agreement is found by any court or similar body to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16.5 The Customer shall not, without the prior written consent of Snap Surveys, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Snap Surveys may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.6 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties. Neither party is the agent for the other, and neither party has the authority to bind the other to any agreement with a third party.
16.7 Snap Surveys may refer to the Customer as a customer of it, and may use the Customer’s name and trade mark in Snap Surveys’ marketing materials and on the Snap Surveys Website.
16.8 This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties, save that Snap Surveys’ Affiliates are intended third party beneficiaries of this Agreement and may enforce its terms.
16.9 This Agreement, any documents referred to in it (including any documents incorporated herein by reference to a URL or otherwise) and the Order Form constitute the whole Agreement between the parties in relation to the Software and the Services and supersede any previous arrangement, understanding or agreement between them on this subject. Any terms and conditions appearing on a purchase order or similar document issued by the Customer do not apply to the Software and the Services, do not override or form a part of this Agreement, and are void.
16.10 Where the Customer has purchased the Software and/or Services through a reseller or other intermediary and not directly from Snap Surveys, the Customer acknowledges that its sole remedy for any claims against Snap Surveys arising out of the supply and/or use of the Software and/or Services shall be as set out under the terms of this Agreement and the Customer hereby waives all rights to bring any claim against Snap Surveys by virtue of any arrangements with such intermediary.
16.11 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
16.12 Snap Surveys may from time to time revise the terms and conditions of this Agreement by publishing a revised version on the Website, but those revisions will not vary this Agreement until the first day of any Renewal Period that follows the date that Snap Surveys publishes the revision on the Website.
16.13 Any amendment to this Agreement that is not made to the online version of this Agreement generally used by Snap Surveys’ customers and which applies to the Customer alone must be in writing, signed by the Customer and Snap Surveys, and expressly state that it is amending this Agreement. If the Customer signs a physical agreement with Snap Surveys to receive the Software and the Services, that physical agreement will override the online version of this Agreement if the physical agreement states so.
17. GOVERNING LAW AND JURISDICTION
17.1 Subject to clause 17.2, this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of New Hampshire and the parties submit to the exclusive jurisdiction of the New Hampshire courts.
17.2 Snap Surveys may apply to any court anywhere in the world for an order restraining the Customer’s use of the Software, Services and/or Documentation in breach of this Agreement and may enforce any such order.
Snap Surveys NH, Inc.
Address: 210 Commerce Way, Suite 200, Portsmouth, NH 03801, USA
Telephone: (603) 610-8700
Email: legal@snapsurveys.com
Website: www.snapsurveys.com
Last Updated November 2015