Thank you for signing up for a subscription of the CleanID software-as-a-service offering (“Service”) described in the mutually agreed upon CleanID Software Subscription Agreement (“Subscription Agreement”) you have entered into with OpinionRoute, LLC, an Ohio limited liability corporation with offices located at 1500 West 3rd Street, Suite 120, Cleveland, OH 44113 (“OpinionRoute”).
By placing an order, entering into a Subscription Agreement, or using or accessing the Service or related products or services, you agree to all these CleanID Terms and Conditions (“Terms and Conditions”).
These Terms and Conditions are entered into by and between OpinionRoute and the client or other party (“Client”) identified in the Subscription Agreement. If you are using the Service or related services on behalf of a company or other entity, then you are binding that entity to the Agreement. You represent and warrant that you have the legal power and authority to enter into the Agreement and that, if the Client is an entity, the Agreement and each Subscription Agreement is entered into by an employee or agent with all necessary authority to bind that entity to the Agreement. OpinionRoute and Client may be referred to herein collectively as the “Parties” or individually as a “Party.” The Subscription Agreement, these Terms and Conditions, exhibits separately executed by the parties, and other documents expressly referenced in the Subscription Agreement or herein, or referencing these Terms and Conditions or the Subscription Agreement are collectively referred to as the “Agreement.”
Unless specified to the contrary in the Subscription Agreement, the Agreement will be effective on the date of Client’s signature of the Subscription Agreement (the “Effective Date”). Please note that we may modify the Agreement as further described in the Section 15(d) herein, so you should make sure to check this page from time to time.
The CleanID Service is one of the products that OpinionRoute offers that focuses on the quality of the respondent. Aside from having an enhanced deduplication capability, CleanID is more importantly a fraud detection service. CleanID offers exclusive, innovative attributes to better safeguard your business needs. This technology uses more than 30 forensic flags and a configurable fraud score to determine the likelihood of fraud in survey respondents.
Unobtrusively analyzes a device from within a browser; no plugins or extensions necessary.
Uniquely and anonymously identifies a device using over 100 data points.
Identifies users as they visit, even if they change their browser, IP Address, or other settings.
Performs fraud forensics.
Identifies high risk and suspicious transactions in real-time so they can be blocked or flagged for manual review.
Determines the uniqueness of a device within the context of an event that you define, such as a survey or filling out a form.
Prevents duplicate accounts.
Returns device and geographical details such as browser, operating system, and state.
Capitalized terms used herein shall have the meanings set forth in this Section 2. Any capitalized terms used by not defined herein shall have the respective meanings ascribed to them in the applicable Subscription Agreement.
Means an entity that directly or indirectly controls, is controlled by or is under common control with an entity. For purposes of this definition, “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests than outstanding of the entity in question.
Means data and information related to Client's use of the Service that is generated and/or used by OpinionRoute in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision, operation, and use of the Service and/or the survey participants who are verified or validated using the Service.
Means (i) OpinionRoute's employees who have a need to know or otherwise access Personal Information to enable OpinionRoute to perform its obligations under the Agreement; and (ii) OpinionRoute's contractors, agents, own service providers, and auditors who have a need to know or otherwise access Personal Information to enable OpinionRoute to perform its obligations under the Agreement, and who are bound in writing by confidentiality and other obligations sufficient to protect Personal Information in accordance with the terms and conditions of the Agreement.
Means Client's employees, consultants, contractors, and agents (i) who are authorized by Client to access and use the Service under the rights granted to Client pursuant to the Agreement and (ii) for whom access to the Service has been purchased hereunder.
Means, other than Aggregated/Anonymous Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted, processed, or collected by or on behalf of Client or an Authorized User through the Service.
Means any Personal Data included in the Client Data that OpinionRoute processes on behalf of Client as a Data Processor in the course of providing the Service.
Means an entity that determines the purposes and means of the processing of Personal Data.
Means an entity that processes Personal Data on behalf of a Data Controller.
Means all data protection and privacy laws applicable to the processing of Personal Data by OpinionRoute pursuant to the Agreement, including, where applicable, EU Data Protection Law.
Means OpinionRoute's user manuals, and guides, including online guides, relating to the Service provided by or on behalf of OpinionRoute to Client either electronically or in hard copy form.
Means (i) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after May 25, 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced).
Means, for the purposes of the Agreement, the European Economic Area, United Kingdom and Switzerland.
Means the Service, the Documentation, and any and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, OpinionRoute IP includes Aggregated/Anonymous Data and any information, data, or other content derived from OpinionRoute's monitoring of Client's access to or use of the Service, but does not include Client Data.
Means information provided to OpinionRoute by or at the direction of Client, information which is created or obtained by OpinionRoute on behalf of Client, or information to which access was provided to OpinionRoute by or at the direction of Client, in the course of OpinionRoute's performance under the Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, health, genetic, medical, or medical insurance data, answers to security questions, and other personal identifiers). Client's business contact information is not by itself deemed to be Personal Information.
Means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017 respectively.
Means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of 12 July 2016 (as may be amended, superseded or replaced).
Has the meaning given to it in the GDPR and “process”, “processes”, and “processed” will be interpreted accordingly.
Means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Client Personal Data.
Means any Data Processor engaged by OpinionRoute or its Affiliates to assist in fulfilling its obligations with respect to providing the Service pursuant to the Agreement or the Agreement.
Means any third-party products described in in the applicable Subscription Agreement(s) provided with or incorporated into the Service.
Subject to and conditioned on Client's payment of the required Fees set forth in the applicable Subscription Agreement(s) and compliance with all other terms and conditions of the Agreement, OpinionRoute hereby grants Client a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 15(g)) right to access and use the Service during the Term, solely for use by Authorized Users in accordance with the terms and conditions in the Agreement, including the allocation of Fraud Detection Transactions or other designated allocation of usage of the Service (each a “Service Allocation”) set forth in the Subscription Agreement. Such use is limited to Client's internal use in connection with Client’s validation and verification of survey participants. OpinionRoute shall make any necessary passwords, API code, network links, credentials, or connections available to Client that are necessary to allow Client to access the Service.
Subject to the terms and conditions contained in the Agreement, OpinionRoute hereby grants to Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15(g)) license to use the Documentation during the Term solely for Client's internal business purposes in connection with its use of the Service.
Client shall not use the Service for any purposes beyond the scope of the access granted in the Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Service or Documentation, in whole or in part; (ii) rent, lease, lend, sell, resell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service, in whole or in part; (iv) remove any proprietary notices from the Service or Documentation; or (v) use the Service or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
OpinionRoute reserves all rights not expressly granted to Client in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the OpinionRoute IP.
Notwithstanding anything to the contrary in the Agreement, OpinionRoute may temporarily suspend Client's and any Authorized User's access to any portion or all of the Service if: (i) OpinionRoute reasonably determines that (A) there is a threat or attack on any of the OpinionRoute IP; (B) Client's or any Authorized User's use of the OpinionRoute IP disrupts or poses a security risk to the OpinionRoute IP or to any other customer or vendor of OpinionRoute; (C) Client, or any Authorized User, is using the OpinionRoute IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) OpinionRoute's provision of the Service to Client or any Authorized User is prohibited by applicable law; (ii) any vendor of OpinionRoute has suspended or terminated OpinionRoute's access to or use of any third-party services or products required to enable Client to access the Service; or (iii) in accordance with Section 8(a) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). OpinionRoute shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Service following any Service Suspension. OpinionRoute shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. OpinionRoute will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.
OpinionRoute may provide Client with a Service on a free or trial basis (a “Free Subscription”) or provide Client with access to “alpha”, “beta”, or other early-stage Service, integrations, or features (“Beta Release”). This Section governs Client’s use of any such Free Subscription or Beta Releases (even if Beta Releases are provided for a fee or counts towards Client’s Service Allocation) and supersedes any contrary provision in the Agreement. OpinionRoute may use commercially reasonable efforts in its discretion to assist Client with Free Subscription or Beta Releases. Nevertheless, notwithstanding anything to the contrary herein and without limiting the other disclaimers and limitations in this Agreement, CLIENT AGREES THAT ANY FREE SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH OPINIONROUTE WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CLIENT’S SOLE RISK. OpinionRoute makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. OpinionRoute may terminate Client’s right to use any Free Subscription or Beta Releases at any time for any reason or no reason in OpinionRoute’s sole discretion, without any liability whatsoever.
Client is responsible and liable for all uses of the Service and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Client will be deemed a breach of the Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of the Agreement's provisions as applicable to such Authorized User's use of the Service, and shall cause Authorized Users to comply with such provisions.
OpinionRoute may from time to time make Third-Party Products available to Client. For purposes of the Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions referred to in the applicable Subscription Agreement(s). If Client does not agree to abide by the applicable terms for any such Third-Party Products, then Client should not install or use such Third-Party Products. Except as otherwise set forth in the applicable Subscription Agreement, any amounts payable to third party vendors or service providers with respect to any such Third-Party Products, if any, are the sole responsibility of Client and shall be paid directly by Client to such third party vendors or service providers.
Availability Requirement. OpinionRoute shall employ commercially reasonable efforts to make the Service Available, as measured over the course of each calendar month during the Term and any additional periods during which OpinionRoute is required to perform any Service (each such calendar month, a “Service Period”), excluding the time the Service are not Available as a result of one or more Exceptions, at least ninety-ninety percent (99%) of the time (the “Availability Requirement”). “Available” or “Availability” means the Service are available and operable for access and use by Client and its users over the Internet in material conformity with the Agreement. The Service are not considered Available in the event of any material downtime, performance degradation or inoperability that precludes use of the Service.
Exceptions. No period of Service downtime, performance degradation or inoperability will be included in calculating Availability to the extent that such downtime, degradation or inoperability is due to any of the following (“Exceptions”):
Scheduled Downtime. OpinionRoute shall use commercially reasonable efforts to notify Client in advance of scheduled outages of the Service (“Scheduled Downtime”) and will use commercially reasonable efforts to limit Scheduled Downtime to no more than twice per month, between the hours of 1 a.m. and 4 a.m., Eastern Time.
OpinionRoute shall respond to Support Requests as set forth below (“Support Service Requirements”).
Support Requests. Requests for support will be classified in accordance with the descriptions set forth in the chart below (each a “Support Request”). Client shall notify OpinionRoute of Support Requests by e-mail, telephone or such other means as the parties may hereafter agree to in writing.
Response to Support Requests. Support Requests shall be addressed by OpinionRoute as described below based upon the designated priority level of the respective Support Request.
As provided below, Client will be entitled to credits for OpinionRoute’s failure to meet the Availability Requirement and any Support Service Requirements.
Service Availability Credits. If the actual Availability of the Service is less than the Availability Requirement for any Service Period, OpinionRoute shall issue to Client a credit as detailed in the table below (“Service Availability Credits”).
Remedies For Support Request Credits. If OpinionRoute fails to meet any Support Service Requirement, OpinionRoute shall issue to Client a credit of the Fees paid for the Service Period in which the failure occurred, as detailed below (“Support Request Credits”) (Service Availability Credits and Support Request Credits, collectively being “Service Level Credits”).
Compensatory Purpose. The parties agree that the Service Level Credits constitute OpinionRoute’s entire liability and Client’s sole and exclusive remedy for OpinionRoute’s failure to meet any Availability Requirement or Support Service Requirement and constitute full and complete compensation for any anticipated or actual harm that Client might suffer as a result.
Issuance of Service Credits. OpinionRoute shall issue to Client, together with its invoice for the relevant period, a written acknowledgment setting forth all Service Credits to which Client is entitled during that period, if any. OpinionRoute shall deduct the amount of the Service Credits from the amount payable to OpinionRoute for such period pursuant to the invoice.
OpinionRoute acknowledges and agrees that, in the course of its engagement by Client, OpinionRoute may create, receive, or have access to Personal Information. OpinionRoute shall comply with the terms and conditions set forth in the Agreement in its creation, collection, receipt, transmission, storage, disposal, use, and disclosure of such Personal Information. In recognition of the foregoing, OpinionRoute agrees and covenants that it shall: (i) keep and maintain all Personal Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, or disclosure; (ii) not create, collect, receive, access, or use Personal Information in violation of law; (iii) use and disclose Personal Information solely and exclusively for the purposes for which the Personal Information, or access to it, is provided pursuant to the terms and conditions of the Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Personal Information for OpinionRoute's own purposes or for the benefit of anyone other than Client, in each case, without Client's prior written consent; and (iv) not, directly or indirectly, disclose Personal Information to any person other than Authorized Persons, without Client's prior written consent unless and to the extent required by government authorities or as otherwise, to the extent expressly required, by applicable law.
OpinionRoute represents and warrants that its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information does and will comply with all applicable federal and, state, and foreign privacy and data protection laws, as well as all other applicable regulations and directives. OpinionRoute shall implement and maintain a written information security program including appropriate policies, procedures, and risk assessments that are reviewed at least annually.
At any time during the term of the Agreement at Client's written request or upon the termination or expiration of the Agreement for any reason, OpinionRoute shall, and shall instruct all Authorized Persons to, promptly return to Client all copies, whether in written, electronic, or other form or media, of Personal Information in its possession or the possession of such Authorized Persons, or securely dispose of all such copies, and certify in writing to Client that such Personal Information has been returned to Client or disposed of securely. OpinionRoute shall comply with all reasonable directions provided by Client with respect to the return or disposal of Personal Information.
OpinionRoute shall, in accordance with the provisions of this Section, maintain or cause to be maintained disaster avoidance procedures designed to safeguard the Client Data and Client's other Confidential Information, and the availability of the Service, in each case throughout the Term and at all times in connection with its actual or required performance of the Service hereunder.
Data Backup. OpinionRoute shall conduct or have conducted contemporaneous backups of Client Data and perform or cause to be performed other periodic backups of Client Data and store such backup Client Data in a commercially reasonable location and manner.
Disaster Recovery/Business Continuity. Throughout the Term and at all times in connection with its actual or required performance of the Service hereunder, OpinionRoute shall maintain a Business Continuity and Disaster Recovery Plan for the Service (the “Plan”), and implement such Plan in the event of any unplanned interruption of the Service. OpinionRoute shall actively test, review, and update the Plan on at least an annual basis using industry best practices as guidance.
As between OpinionRoute and Client, Client is the Data Controller of Client Personal Data, and OpinionRoute will process Client Personal Data only as a Data Processor acting on behalf of Client.
Client agrees that: (i) it will comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Client Personal Data and any processing instructions it issues to OpinionRoute; and (ii) it has provided notice and obtained (or will obtain) all consents and rights necessary under Data Protection Laws for OpinionRoute to process Client Personal Data and provide the Service pursuant to the Agreement.
OpinionRoute will process Client Personal Data only for the purposes described in the Agreement and only in accordance with Client's documented lawful instructions. The parties agree that the Agreement sets out the Client's complete and final instructions to OpinionRoute in relation to the processing of Client Personal Data and processing outside the scope of these instructions (if any) will require prior written agreement between Client and OpinionRoute.
Subject matter: The subject matter of the data processing under the Agreement is the Client Personal Data.
Duration: As between OpinionRoute and Client, the duration of the data processing under the Agreement is until the termination of the Agreement in accordance with its terms.
Purpose: The purpose of the data processing under the Agreement is the provision of the Service to the Client and the performance of OpinionRoute pursuant to the Agreement or as otherwise agreed by the parties.
Nature of the processing: OpinionRoute provides survey participant validation services and other related services, as described in the Agreement.
Categories of data subjects: Authorized Users and survey participants.
Types of Personal Data: Internet Protocol address and geographic location and other information related to or derived from such Internet Protocol address (collectively “IP address”).
Use of Subprocessors. Client agrees that OpinionRoute may engage Subprocessors to process Client Personal Data on Client's behalf. For purposes of this Section, “Subprocessor” means an OpinionRoute Affiliate or third-party entity engaged by OpinionRoute or an OpinionRoute Affiliate as a Data Processor. OpinionRoute or the relevant OpinionRoute Affiliate shall ensure that such Subprocessor has entered into a written agreement requiring the Subprocessor to abide by the terms no less protective than those provided in the Agreement. Upon Client's request, OpinionRoute will make available to Client a summary of the data processing terms. OpinionRoute shall be liable for the acts and omissions of any Subprocessor to the same extent as if the acts or omissions were performed by OpinionRoute.
Notification Regarding New Subprocessors. OpinionRoute shall make available to Client a list of Subprocessors authorized to process Client Personal Data (“Subprocessor List”) and provide Client with a mechanism by which to obtain notice of any updates to the Subprocessor List. At least thirty (30) days prior to authorizing any new Subprocessor to process Customer Data, OpinionRoute shall provide notice to Client by updating the Subprocessor List.
Subprocessor Objection Right. If Client objects on reasonable grounds relating to data protection to OpinionRoute's use of a new Subprocessor, then Client shall promptly, and within fourteen (14) days following OpinionRoute's notification pursuant to Section 7(e)(ii). above, provide written notice of such objection to OpinionRoute. Should OpinionRoute choose to retain the objected-to Subprocessor, OpinionRoute will notify Client at least fourteen (14) days before authorizing the Subprocessor to process Client Personal Data and Client may immediately discontinue using the relevant portion(s) of the Service and may terminate the relevant portion(s) of the Service within thirty (30) days. Upon any termination by Client pursuant to this Section, OpinionRoute shall refund any prepaid fees for the terminated portion(s) of the Service that were provided after the effective date of termination.
OpinionRoute will ensure that any person who is authorized by OpinionRoute to process Client Personal Data (including its staff, agents and subcontractors) will: (i) process Personal Data in accordance with Client's instructions as set forth in the Agreement; (ii) receive appropriate training on their responsibilities regarding the handling and safeguarding of Personal Data; and (iii) be under an appropriate obligation of confidentiality (whether a contractual or statutory duty) which shall survive the termination of employment.
Upon becoming aware of a Security Incident, OpinionRoute will notify Client without undue delay and will provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Client. To the extent Client requires information from OpinionRoute to meet its breach notification obligations under applicable Data Protection Laws, vendor shall provide reasonable assistance to provide such information to Client taking into account the nature of the Processing and the information available to OpinionRoute.
Audits shall be: (i) subject to the execution of appropriate confidentiality or non-disclosure agreements; (ii) conducted no more than once per year, unless a demonstrated reasonable belief of non-compliance with the Agreement has been made, upon thirty (30) days prior written notice and having provided a plan for such review; and (iii) conducted at a mutually agreed upon time, place, and manner.
Upon termination or expiration of the Agreement, OpinionRoute will (at Client's election) delete or return to Client all Client Personal Data (including copies) in its possession or control, save that this requirement will not apply to the extent OpinionRoute is required by applicable law to retain some or all of the Client Personal Data, or to Client Personal Data it has archived on back-up systems, which Client Personal Data OpinionRoute will securely isolate and protect from any further processing, except to the extent required by applicable law.
Correction, Deletion, or Restriction. OpinionRoute will, at its election and as necessary to enable Client to meet its obligations under applicable Data Protection Laws, either: (i) provide Client the ability within the Service to correct or delete Personal Data or restrict its Processing; or (ii) make corrections, deletions, or restrictions on Client’s behalf if such functionality is not available within the Service.
Access to Personal Data. To the extent a data subject’s Personal Data is not accessible to Client through the Service, OpinionRoute will, as necessary to enable Client to meet its obligations under applicable Data Protection Laws, provide reasonable assistance to make such Personal Data available to Client.
Handling of Data Subject Requests. For the avoidance of doubt, Client is responsible for responding to data subject requests for access, correction, deletion, or restriction of that data subject’s Personal Data (“Data Subject Request”). If OpinionRoute receives a Data Subject Request, OpinionRoute shall promptly redirect the data subject to Client.
Data Portability. During the Term of the Agreement, Client may extract Personal Data from the Service in accordance with the relevant portions of the Agreement, including so that Client can provide the Personal Data to a data subject who makes a data portability request under applicable Data Privacy Laws.
Upon request from Client, OpinionRoute will make available in a timely manner such information as is required by Client to demonstrate OpinionRoute’s compliance with its obligations under applicable Data Protection Laws and under the Agreement.
If a law enforcement agency sends OpinionRoute a demand for Client Personal Data (for example, through a subpoena or court order), then OpinionRoute will attempt to redirect the law enforcement agency to request that data directly from Client. As part of this effort, OpinionRoute may provide Client’s basic contact information to the law enforcement agency. If compelled to disclose Client Personal Data to a law enforcement agency, then OpinionRoute will give Client reasonable notice of the demand to allow Client to seek a protective order or other appropriate remedy unless OpinionRoute is legally prohibited from doing so.
To the extent OpinionRoute is required under applicable Data Protection Laws, OpinionRoute will (at Client’s expense to the extent legally permitted) provide reasonably requested information regarding the Service to enable the Client to carry out data protection impact assessments or prior consultations with data protection authorities as may be required by law.
Processing Locations. OpinionRoute may transfer and process Client Personal Data anywhere in the world where OpinionRoute, its Affiliates or its Subprocessors maintain data processing operations. OpinionRoute will at all times provide an adequate level of protection for the Client Personal Data processed, in accordance with the requirements of Data Protection Laws.
Privacy Shield. To the extent that OpinionRoute processes any Client Personal Data protected by EU Data Protection Law under the Agreement and/or that originates from the EEA, in a country that has not been designated by the European Commission as providing an adequate level of protection for Personal Data, the parties acknowledge that OpinionRoute will be deemed to provide adequate protection (within the meaning of EU Data Protection Law) for any such Client Personal Data by virtue of having self-certified its compliance with Privacy Shield. OpinionRoute agrees to protect such Personal Data in accordance with the requirements of the Privacy Shield Principles. If OpinionRoute is unable to comply with this requirement, OpinionRoute will inform Client.
Alternative Transfer Mechanism. The parties agree that the data export solution identified in Section 7(n)(ii). will not apply if and to the extent OpinionRoute adopts an alternative data export solution for the lawful transfer of Personal Data (as recognized under EU Data Protection Laws) outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism will apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which Personal Data is transferred).
Client shall pay OpinionRoute the fees (“Fees”) as set forth in the applicable Subscription Agreement(s) without offset or deduction. Client shall make all payments hereunder in US dollars on or before the due date set forth in the applicable Subscription Agreement(s). If Client fails to make any payment when due, without limiting OpinionRoute's other rights and remedies: (i) OpinionRoute may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Client shall reimburse OpinionRoute for all reasonable costs incurred by OpinionRoute in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, OpinionRoute may suspend Client's and its Authorized Users' access to any portion or all of the Service until such amounts are paid in full.
Client shall reimburse OpinionRoute for out-of-pocket expenses incurred by OpinionRoute in connection with performing the Service.
All Fees and other amounts payable by Client under the Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on OpinionRoute's income.
Client agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of the Agreement with respect to matters necessary for accurately determining amounts due hereunder. OpinionRoute may, at its own expense, on reasonable prior notice, periodically inspect and audit Client's records with respect to matters covered by the Agreement, provided that if such inspection and audit reveals that Client has underpaid OpinionRoute with respect to any amounts due and payable during the Term, Client shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 7(a). Client shall pay for the costs of the audit if the audit determines that Client's underpayment equals or exceeds 25% for any quarter. Such inspection and auditing rights will extend throughout the Term of the Agreement and for a period of two years after the termination or expiration of the Agreement.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under the Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Client acknowledges that, as between Client and OpinionRoute, OpinionRoute owns all right, title, and interest, including all intellectual property rights, in and to the OpinionRoute IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
If Client or any of its employees or contractors sends or transmits any communications or materials to OpinionRoute by mail, email, telephone, or otherwise, suggesting or recommending changes to the OpinionRoute IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), OpinionRoute is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to OpinionRoute on Client's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and OpinionRoute is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although OpinionRoute is not required to use any Feedback.
OpinionRoute acknowledges that, as between OpinionRoute and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to OpinionRoute a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for OpinionRoute to provide the Service to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated/Anonymous Data.
Notwithstanding anything to the contrary in the Agreement, OpinionRoute may monitor Client's use of the Service and collect and compile Aggregated/Anonymous Data resulting from Client’s use of the Service. As between OpinionRoute and Client, all right, title, and interest in Aggregated/Anonymous Data, and all intellectual property rights therein, belong to and are retained solely by OpinionRoute. Client acknowledges that OpinionRoute may compile, collect, use, copy, store, transmit, modify, and create derivative works of Aggregated/Anonymous Data based on Client Data input into the Service. Client agrees that OpinionRoute may (i) make Aggregated/Anonymous Data publicly available in compliance with applicable law, and (ii) use Aggregated/Anonymous Data to the extent and in the manner permitted under applicable law. For clarity, OpinionRoute will only publicly disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Client, Authorized Users, or survey participants who are verified or validated using the Service.
THE OPINIONROUTE IP, INCLUDING THE SERVICES, IS PROVIDED “AS IS” AND OPINIONROUTE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. OPINIONROUTE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. OPINIONROUTE MAKES NO WARRANTY OF ANY KIND THAT THE OPINIONROUTE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
OpinionRoute shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) (“Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Service, or any use of the Service in accordance with the Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Client promptly notifies OpinionRoute in writing of the claim, cooperates with OpinionRoute, and allows OpinionRoute sole authority to control the defense and settlement of such claim.
If such a claim is made or appears possible, Client agrees to permit OpinionRoute, at OpinionRoute's sole discretion, to (A) modify or replace the Service, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If OpinionRoute determines that neither alternative is reasonably available, OpinionRoute may terminate the Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client.
This Section 12(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Service in combination with data, software, hardware, equipment, or technology not provided by OpinionRoute or authorized by OpinionRoute in writing; (B) modifications to the Service not made by OpinionRoute; (C) Client Data; or (D) Third-Party Products.
Client shall indemnify, hold harmless, and, at OpinionRoute's option, defend OpinionRoute from and against any Losses resulting from any Third-Party Claim that the Client Data, or any use of the Client Data in accordance with the Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Client's or any Authorized User's (i) breach of the Agreement (including Section 4 of these Terms and Conditions) or negligence or willful misconduct; (ii) use of the Service in a manner not authorized by the Agreement; (iii) use of the Service in combination with data, software, hardware, equipment or technology not provided by OpinionRoute or authorized by OpinionRoute in writing; or (iv) modifications to the Service not made by OpinionRoute, provided that Client may not settle any Third-Party Claim against OpinionRoute unless OpinionRoute consents to such settlement, and further provided that OpinionRoute will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
THIS SECTION 12 SETS FORTH CLIENT'S SOLE REMEDIES AND OPINIONROUTE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
IN NO EVENT WILL OPINIONROUTE BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER OPINIONROUTE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL OPINIONROUTE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO OPINIONROUTE UNDER THE AGREEMENT IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000, WHICHEVER IS LESS. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY HEREIN, FOR FREE SUBSCRIPTIONS OR BETA RELEASES, OPINIONROUTE’S TOTAL LIABILITY WILL NOT EXCEED FIFTY U.S. DOLLARS ($50 US) IN THE AGGREGATE.
The Agreement will commence on the Effective Date and, unless earlier terminated in accordance with the Termination section, below, will remain in effect so long as any Subscription Agreement remains in effect, or, if no such term is specified in an applicable Subscription Agreement, for a period of one year (collectively, the “Initial Term”). The Agreement will automatically renew for additional successive one year terms unless earlier terminated in accordance with the Agreement's express provisions or if either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). OpinionRoute shall have the right to increase the Fees that are applicable to any Renewal Term upon prior written notice to Client not less than sixty (60) days prior to the expiration of the then current Initial Term or Renewal Term.
In addition to any other express termination right set forth in the Agreement:
OpinionRoute may terminate the Agreement, effective on written notice to Client, if Client: (A) fails to pay any amount when due hereunder, and such failure continues more than 60 days after OpinionRoute's delivery of written notice thereof; or (B) breaches any of its obligations under Section 3(c) or Section 9;
either Party may terminate the Agreement, effective on written notice to the other Party, if the other Party materially breaches the Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 60 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
either Party may terminate the Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Upon expiration or earlier termination of the Agreement, Client shall immediately discontinue use of the OpinionRoute IP and, without limiting Client's obligations under Section 9, Client shall delete, destroy, or return all copies of the OpinionRoute IP and certify in writing to the OpinionRoute that the OpinionRoute IP has been deleted or destroyed. No expiration or termination will affect Client's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund.
This Section 14(d) and Sections 2, 9, 10, 11, 12, 13, 14(c), and 15 survive any termination or expiration of the Agreement. No other provisions of the Agreement survive the expiration or earlier termination of the Agreement.
The Agreement, together with any other documents incorporated herein by reference and all related exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. To the extent of any conflict between these Terms and Conditions and the Subscription Agreement, these Terms and Conditions will control, except to the extent the Subscription Agreement expressly identifies a provision of these Terms and Conditions to be superseded by the Subscription Agreement. In the event of any inconsistency between the statements made in these Terms and Conditions, all related exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms and Conditions, excluding its exhibits; (ii) second, the exhibits to these Terms and Conditions as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of the Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in the Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
In no event shall either Party be liable to the other Party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
The Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to the Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in the city of Cleveland and County of Cuyahoga, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of OpinionRoute. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. The Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Service or any Client Data outside the US.
Each of the Documentation and the software components that constitute the Service is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Client is an agency of the US Government or any contractor therefor, Client only receives those rights with respect to the Service and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 9 or, in the case of Client, Section 3(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Client grants OpinionRoute a license to use Client’s name, trademarks, and logos to identify Client as an OpinionRoute customer on OpinionRoute’s website and other marketing materials.
OpinionRoute is permitted to use subcontractors and authorize them to exercise the rights granted to OpinionRoute in order to provide the Service under this Agreement.
The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.