Toluna QuickSurveys Terms and Conditions
TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) VERY CAREFULLY BEFORE REGISTERING TO USE TOLUNA QUICKSURVEYS AS A CUSTOMER. YOUR REGISTRATION INDICATES THAT YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, PLEASE DO NOT REGISTER TO USE TOLUNA QUICKSURVEYS.
We may amend these Terms from time to time as set out in Section 12(d). Every time you wish to use our Services online, please check these Terms to ensure you understand the terms which will apply at that time. These Terms were most recently updated on 13th June 2016.
These Terms constitute the entire agreement between you ("you" or "Customer") and Toluna SAS, 1 bis rue Collange 92300 Levallois-Perret - FRANCE ("Toluna") for the use of Toluna's quick research and polling service named Toluna QuickSurveys (the "Service") accessible on its website www.toluna.com or any of its local sub-websites (collectively, the "Website"). The Service is provided to you in accordance with these Terms and any other applicable rules and policies set forth on the Website.
The Service allows you to create individualized Toluna QuickSurveys, and obtain results to your Toluna QuickSurveys account from registered members of the Toluna panel (the "Panellists") or any person visiting the Website, in the selected country. You are solely responsible for all of the content of the Toluna QuickSurveys you create and post on the Website, including, but not limited to the creation, renewal, updating, deletion, editorial content, control and all other aspects of any files, software, scripts, images, graphics, audio, video, text, data, music, sound, photographs, or other objects, survey questions and responses, information, messages or other materials communicated, submitted or transmitted by you or respondents of your surveys through the Service (collectively, the "Customer Content"). By using the Service, you grant Toluna the right to reproduce, publish, display and distribute your Toluna QuickSurveys on the Website. You acknowledge and agree that Toluna does not warrant participation in Toluna QuickSurveys or participation rates and that participation rates may vary drastically depending on content, placement and audience. Toluna shall bear no liability in the event that the participation is lower than requested, except that, if you prepay to receive results to your Toluna QuickSurveys from Panellists and the participation of Panellists is less than 50% of the number of respondents selected by you from the Toluna panel during the time frame specified in the applicable purchase order, you may receive a credit to your account by emailing firstname.lastname@example.org. Once your Toluna QuickSurveys has been posted on the Website, you will not be able to make any further modification (surveys definition, filters, images etc...) nor cancel it. The results of your Toluna QuickSurveys will be accessible directly on the Website in a first release and export capabilities in several formats will be added thereafter. Results to Toluna QuickSurveys are stored on the Website and will remain accessible until you remove your account. Toluna QuickSurveys does not claim ownership over any of your content, you retain ownership of all of your intellectual property rights as they pertain to your content. These terms do not grant Toluna QuickSurveys any license or rights to your content except for the limited rights needed for Toluna QuickSurveys to provide the Services, and as otherwise described in these Terms. In the event you delete your account, all account data will be removed from Toluna QuickSurveys backup files within one (1) business day. Notwithstanding the foregoing, Toluna reserves the right to reject or remove any Toluna QuickSurveys at any time, where it has reasonable ground to believe that the content of a Toluna QuickSurveys does not comply with these Terms or any applicable legislation or regulation, or after a period of two years after your Toluna QuickSurveys has been posted on the Website.
Client Registration and Account
a. The price of the Service shall be the fee quoted to you via your Toluna Quick Surveys account on this Website. All fees quoted exclude Value Added Tax, sales tax and/or any other required taxes or duties, which shall be applied, if applicable. The Services must be purchased in the form of a paid thirty (30) day subscription to the Service (a "Subscription"), and you must pay for your Subscription by credit or debit card monthly thereafter in advance on the same day of each month that you started your Subscription. You acknowledge and agree that if your credit card payment cannot be processed for any reason, Toluna may suspend or cancel your Subscription. You are responsible for all charges associated with your use of the Service as notified in your account and you agree to pay all such charges, including any applicable taxes, at the rates effective at the time they are incurred. Toluna may change such fees at any time and in its sole discretion, provided that any such change shall become effective at the end of the period of your then-current monthly Subscription term. Your Subscription shall automatically continue until you cancel it. If you cancel your Subscription, the cancellation will become effective on the last date of the then current thirty (30) day Subscription period. For the avoidance of doubt, you shall not be entitled to a refund for any unused portion of the Service under any circumstances.
b. By clicking “Process Order” you agree to be billed each month in the amount notified to you via your Toluna Quick Surveys account and thereafter on a monthly basis, using the debit or credit card you provide. You may cancel your monthly premium feature subscription at any time by clicking “Cancel Premium Feature Plan” via your Toluna Quick Surveys account page. For your convenience, Toluna will store your encrypted payment information for future orders, however you can manage your payment information in your Toluna Quick Surveys account settings.
Customer hereby agrees not to access and/or use the Service: (i) to send any unsolicited email or any commercial message or invitation; (ii) to request, collect, store and/or disclose personally identifiable data from survey respondents or to breach any applicable privacy law; (iii) to communicate any message or material that is deemed harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically or otherwise objectionable, hateful, tortuous, libellous, defamatory, slanderous or otherwise unlawful; (iv) in a manner which infringes any patent, trademark, copyright or other intellectual property rights of any third party; (v) in a manner which breaches any applicable laws, rules and regulations; or (vi) in a manner which constitutes or encourages conduct that could be a criminal or civil offenCe under any applicable law or regulation. Although Toluna is not responsible for any such content or communications, Toluna reserves the right to take any action it deems necessary or appropriate in its sole discretion, with respect to any such content or communications of which Toluna may become aware, at any time and without notice to Customer. Customer further acknowledges and agrees as follows:
a. Toluna does not control the Customer Content and makes no representation or warranty regarding its accuracy, integrity or quality.
b. Customer may not modify, edit, copy, reproduce, create derivative works of, enhance, reverse engineer, decompile, alter, duplicate or otherwise attempt to decipher any code in connection with the Service or any other aspect of Toluna's technology.
c. Customer shall not upload, post, email, distribute, communicate, transmit, or otherwise make available any viruses or similar malicious software that may damage the operation of a computer or the Service.
d. Customer shall not use the Toluna QuickSurveys to send surveys, polls, or other materials to individuals under the age of majority in his or her place of residence ("Minors"), or to harm Minors in any way, and shall not send surveys, polls, or other materials to Minors that would subject Toluna to any local or international law, rule or regulation (including industry regulations) governing children's privacy or otherwise related to protecting Minors. This includes, in particular, any research on sensitive issues such as sexuality, drug use, etc.
e. Customer may not assign, transfer resell, distribute or otherwise use the Service except as agreed herein. Customer shall not use or present the survey results in a misleading or illegal manner, or in any manner which would adversely impact upon the reputation or goodwill of Toluna, and Toluna reserves the right to publish a correction in the event of such use or presentation. Survey results cannot be used in connection with any dispute resolution, litigation, arbitration or other legal proceeding of any nature ("Litigation Purposes"). Customer must ensure that whenever the research findings are communicated to clients, customers, employees, survey respondents or otherwise published, Toluna is credited for all research as "research conducted using Toluna QuickSurveys, powered by Toluna".
f. Customer may not assign, transfer resell, distribute or otherwise use the Service except as agreed herein. Customer may not assign, transfer resell, distribute or otherwise use the Service except as agreed herein.
g. Customer shall not access and/or use Toluna QuickSurveys in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Service or any networks or security systems of Toluna.
h. You acknowledge and agree that any violation of any of the foregoing will constitute a material breach of your contract with us pursuant to these Terms (“Contract”). In such event, Toluna may, in addition to any and all applicable legal and equitable remedies against you, (i) disable your account and your access to the Website and the Service hereunder; and (ii) recover from you any losses damages, costs or expenses incurred by Toluna resulting from or arising out of your non-compliance. You further acknowledge and agree that Toluna may cooperate with any governmental authority in connection with any investigation into your use of Toluna QuickSurveys, including use in contravention of applicable laws, and may, in accordance with applicable laws, disclose any Customer Content, and any other information pertaining to you or to your use of Toluna QuickSurveys, to such governmental authority in connection with any such investigation.
Intellectual Property Rights
As between Customer and Toluna, Customer shall own all right, title and interest in and to any Customer Content. During the term of your Subscription, you grant to Toluna a limited, non-exclusive, royalty-free license to host the Customer Content solely for all reasonable and necessary purposes contemplated by these Terms. These Terms do not transfer or convey to Toluna or any third party any right, title or interest in or to the Customer Content or any associated intellectual property rights, but only a limited right of use revocable in accordance with these Terms. Toluna, its affiliates and/or their licensors shall remain the sole and exclusive owners of all intellectual property rights, including without limitation all patents, trademarks, service marks, copyright, database, software, and know how in and to the Website, the Service and any content therein (the "Materials"). You will not acquire any right, title, or interest in or to the Materials except as expressly set forth in these Terms. Toluna grants you a personal, non-exclusive, non-transferable and revocable right to use the Materials for the sole purpose of using the Service in accordance with the terms of these Terms. The Materials may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purpose whatsoever without the prior written consent of Toluna or its licensors.
Term and Termination
These Terms shall automatically become effective upon your first use of Toluna QuickSurveys and shall continue until it is terminated in accordance with these Terms. If you do not have a Subscription, you may terminate this Contract by emailing Toluna at email@example.com, and the Contract will terminate immediately after Toluna has received said notice. If you do have a Subscription, you may cancel the Subscription and terminate the Contract by written notice in the event Toluna materially breaches any of its obligations hereunder, and said breach is not cured within 60 days of Toluna's receipt of your notice of such breach. Toluna may terminate this Contract and cancel any Subscription hereunder immediately by notice to you in the event that you breach any of your representations, warranties, covenants or obligations under these Terms or contravene any applicable law. Upon any termination the Contract, your rights to use the Service shall cease immediately, your account will be deactivated and Toluna shall have no obligation to retain, forward or make available to you any Toluna QuickSurveys responses or results. Upon a termination, all rights and duties of the parties toward each other shall cease except those intended to survive such termination (including, but not limited to, Sections 7, 8, 9, 10, 11 and 12). Upon termination, all account information and data will be deleted from Toluna QuickSurveys backup files within one (1) business day.
Customer shall, at its sole expense, indemnify, defend and hold Toluna, its affiliates and their respective officers, directors, employees and agents harmless from and against any loss, cost, damages, liability or expense arising out of or relating to: (i) Customer's use of the Service, including its reliance on any information or materials (including survey results or responses) obtained through the use of the Service; and/or (ii) Customer's breach of these Terms.
Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY LAW, TOLUNA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, SUITABILITY, AVAILABILITY, TIMELINESS, QUALITY, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU AGREE AND ACKNOWLEDGE THAT THE WEBSITE AND THE SERVICE ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," AND "WITH ALL FAULTS". OTHER THAN AS SPECIFICALLY SET FORTH HEREIN TOLUNA MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES TOLUNA MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED (INCLUDING PLUG-INS) THROUGH THE USE OF THE SERVICE IS DONE AT THE SOLE RISK OF CUSTOMER AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM TOLUNA OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.TO THE FULL EXTENT PERMITTED BY LAW, TOLUNA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, SUITABILITY, AVAILABILITY, TIMELINESS, QUALITY, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU AGREE AND ACKNOWLEDGE THAT THE WEBSITE AND THE SERVICE ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," AND "WITH ALL FAULTS". OTHER THAN AS SPECIFICALLY SET FORTH HEREIN TOLUNA MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES TOLUNA MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED (INCLUDING PLUG-INS) THROUGH THE USE OF THE SERVICE IS DONE AT THE SOLE RISK OF CUSTOMER AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM TOLUNA OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TOLUNA BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER DAMAGES RELATED TO THIS CONTRACT, THE WEBSITE OR THE SERVICE (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOST PROFITS, COSTS OF RECOVERY OR ANY OTHER DAMAGES), HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, AND WHETHER OR NOT TOLUNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TOLUNA'S LIABILITY HEREUNDER IS LIMITED TO $1,000 OR THE AMOUNT OF FEES PAID TO TOLUNA BY CUSTOMER HEREUNDER, WHICHEVER IS LESS. NO ACTION ARISING OUT OF THIS AGREEMENT (OTHER THAN AN ACTION BY TOLUNA FOR THE RECOVERY OF FEES OWED) MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION FIRST AROSE.TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TOLUNA BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER DAMAGES RELATED TO THIS AGREEMENT, THE WEBSITE OR THE SERVICE (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOST PROFITS, COSTS OF RECOVERY OR ANY OTHER DAMAGES), HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, AND WHETHER OR NOT TOLUNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TOLUNA'S LIABILITY HEREUNDER IS LIMITED TO $1,000 OR THE AMOUNT OF FEES PAID TO TOLUNA BY CUSTOMER HEREUNDER, WHICHEVER IS LESS. NO ACTION ARISING OUT OF THIS AGREEMENT (OTHER THAN AN ACTION BY TOLUNA FOR THE RECOVERY OF FEES OWED) MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION FIRST AROSE.
Applicable Law and Jurisdiction
This Contract 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 England and Wales. You irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
a. 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 Contract without the consent of any third party or breach of any contract or agreement with any third party.
b. Assignment – Customer may not assign its rights or delegate its duties under this Contract either in whole or in part, and any such attempted assignment or delegation shall be void
c. Force Majeure – Neither party shall be deemed in default of these Terms 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 labour disputes, inability to provide raw materials, power or supplies or any other similar act or condition beyond the reasonable control of such party.
d. Amendment – We may amend these Terms from time to time for any reason, including to reflect changes in laws, regulatory requirements and other rules and codes of conduct to which we are accustomed. Please look at the top of this page to see when these Terms were last updated and which terms were changed. Every time you use the Service, these Terms in force at the time of your order will apply to the Contract between you and us.
e. Severability – If any provision of this Contract is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from these Terms and the others shall remain in full force and effect.
f. Contracts (Rights of Third Parties) Act 1999 – A person who is not a Party to this Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
g. Neutral Construction – The parties agree that these Terms shall be deemed to have been jointly and equally drafted by them, and that the provisions of these Terms 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).
h. Entire Agreement – Each party to this Contract acknowledges that these Terms constitutes the entire agreement of the parties with regard to the subject matter addressed in these Terms, that these Terms supersede all prior or contemporaneous agreements, discussions, or representations, whether oral or written, with respect to the subject matter of the Contract, and that these Terms cannot be amended except by a writing signed by all parties hereto. Each party to this Contract 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 Contract by said party, and each party acknowledges that it has not executed this Contract in reliance on any promise, representation, inducement or warranty not contained herein.
i. Captions and Headings – Captions and headings are used herein for convenience only, are not a part of this Contract, and shall not be used in interpreting or construing this Contract.