These Terms and Conditions for Clients (“Terms and Conditions”) are between Crowdtap, Inc. (“Crowdtap”) and its Client (“Client”) and become a binding contract upon acceptance by Client.
1. Relationship of Parties. Client and Crowdtap intend to act and perform as independent contractors. This Agreement is not intended to create a partnership, joint venture or agency or employment relationship between Client and Crowdtap or between a party and the employees, agents or independent contractors of the other party. Each of Client and Crowdtap is and will remain responsible for its respective employees and agents and will make no claim against the other for compensation, vacation pay, sick leave, retirement benefits, social security benefits, workers' compensation, disability or unemployment insurance benefits or employee benefits of any kind.
2. Fees. Client shall pay to Crowdtap, the fees (“Fees”) set forth in the Crowdtap Insertion Order. Client may purchase actions and recruiting under a subscription package (“Subscription”). All Fees will be billed to Client upon completion of Insertion Order and are due before service begins.
Fees will be billed as follows:
(a) Crowdtap offers a number of different Subscription packages but reserves the right to modify these packages, add new packages and/or remove these packages at any time. In the event Crowdtap removes a package, Crowdtap will grant Client the right to cancel the package and/or provide Client with a package of equivalent value. Subscription packages commence on the Subscription start date and will continue for one (1) year thereafter. Client may not cancel a Subscription prior to the end of the subscription term except to upgrade to a Subscription with a higher fee. Such an upgrade would void the term of the current Subscription and begin a new one (1) year term on the new package. Any unused credit from the prior Subscription would be applied to the Client's account against the new Subscription.
3. Promotional Codes. Crowdtap, in its sole discretion, may (but is not obligated to) award Client promotional codes (“Promo Codes”). Promo Codes have no cash value and may be revoked by Crowdtap at any time, as determined by Crowdtap in its sole and absolute discretion.
4. Representations and Warranties of Client. Client represents and warrants to Crowdtap that:
(a) it has the full right, power and authority to enter into and to perform its obligations under this Agreement;
(b) it has the right to grant the licenses contained herein;
(c) the execution, delivery and performance of this Agreement will not conflict with, or result in a breach or termination of, or constitute a default under, any agreement or other obligation to which Client is a party or by which Client is bound;
(d) all advertising and promotional materials, products, services and premiums supplied or specified by Client or provided to Crowdtap or Crowdtap Members in connection with this Agreement will comply with all applicable laws and regulations and will not infringe upon or otherwise violate the rights of any third party;
(e) That it will comply with all applicable state, federal, county and municipal laws, statutes and regulations;
(f) All Promotional Materials distributed by Client will comply with all applicable state, federal, local and international laws and regulations (including, without limitation, the Child Online Privacy Protection Act, CAN-SPAM, and applicable privacy and telemarketing laws).
5. Mutual Indemnification. Each party shall indemnify and hold the other party harmless, including without limitation, its parent company, subsidiaries, affiliates, officers, directors, employees and agents from and against any and all claims, loss, liability, damage or expenses (including reasonable attorneys' fees and expenses), whether arising out of a claim involving a third party or between the parties to this Agreement (together the “Claims”) that either party may suffer as a result of (a) a breach of any representation or warranty of the Indemnifying Party under this Agreement(b) any claim of negligence or willful misconduct , property damage, personal injury or death arising from or related to the acts of the Indemnifying Party connected with this Agreement.
Client acknowledges and agrees that Crowdtap, its parent company, subsidiaries, affiliates, officers, directors, employees and agents (collectively, “Crowdtap Released Parties”) are in no way liable for the acts and/or omissions of any Crowdtap Program (“Program”) members (each a “Member” and collectively, “Members”), and hereby releases and holds Crowdtap Released Parties harmless from any and all liability, claims, loss, harm, damages, cost or expense, including without limitation property damages, personal injury and/or death, arising out of any Member's participation in the Program, Member's breach of any agreement or the Program Terms and/or Member's fraud or deceit (including failing to obtain appropriate parental consent to join Program and/or otherwise lying about Member's age or other profile information when joining Crowdtap or Program). For sake of clarity, Crowdtap's indemnity obligation set forth in this Section 5 do not cover Claims arising out of its Member's acts or omissions, regardless of whether willful or negligent.
Client shall defend, indemnify and hold Crowdtap Released Parties harmless from and against any Claims arising out of Client's products or services, including any issues of consumer protection or product liability concerning the nature or use of Client's products; including, but not limited to any Claims that are the result of providing Client's products or samples to Members in connection with this Agreement and/or the Program.
Each party (the “Notifying Party”) shall promptly notify the other party (the “Indemnifying Party”) of the existence of any action giving rise to a claim for indemnification under this Section 5 and shall give the Indemnifying Party a reasonable opportunity to defend the same at its own expense and with its own counsel provided that the Notifying Party shall at all times have the right to participate in the defense at its own expense. If, within a reasonable time after receipt of notice of a Claim, the Indemnifying Party shall fail to undertake to so defend, the Notifying Party shall have the right, but not the obligation, to defend and to compromise or settle (exercising reasonable business judgment) the Claim for the account and at the risk and expense of the Indemnifying Party. Each party shall make available to the other, at the other's expense, such information and assistance as the other shall reasonably request in connection with the defense of a Claim.
6. Limitations of Liability; Disclaimer of Warranties. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM ANY PROVISION OF THIS AGREEMENT. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, NO CLAIM, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SCOPE OF WORK MAY BE BROUGHT BY AN AGGRIEVED PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL CROWDTAP BE LIABLE TO CLIENT FOR ANY ACTIONS WHATSOEVER ON THE PART OF ANY MEMBER ENGAGED BY AND PERFORMING WORK FOR CLIENT. CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT MEMBERS ARE NOT EMPLOYEES OF CROWDTAP, AND CROWDTAP, WHILE CREATING, TRACKING AND MANAGING THE NETWORK IN WHICH CLIENT AND MEMBERS ARE UNITED, SOLELY FACILITATES THE ENGAGEMENT OF MEMBERS BY CLIENT AND AS SUCH DOES NOT AND CANNOT CONTROL, MONITOR, SUPERVISE OR REGULATE THE ACTIONS OF MEMBERS.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CROWDTAP MAKES NO OTHER WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL CROWDTAP'S TOTAL LIABILITY EXCEED THE AMOUNT PAID TO CROWDTAP BY CLIENT UNDER THIS AGREEMENT.
7. Confidentiality; Nondisclosure. “Confidential Information” means all information, including data, technology, prices, samples and specimens relating to Disclosing Party and its products, product concepts, technologies, businesses, financial, clinical or regulatory affairs, manufacturing processes or procedures or those of any third party from whom Disclosing Party receives information on a confidential basis, whether written, graphic or oral, furnished to Receiving Party by or on behalf of Disclosing Party, either directly or indirectly, or obtained or observed by Receiving Party while performing under this Agreement or any Scope of Work except information that is: (a) now in the public domain or subsequently enters the public domain without fault on the part of Receiving Party; (b) presently known by Receiving Party from Receiving Party's own sources as evidenced by Receiving Party's prior written records; (c) received by Receiving Party from a third party not under any obligation to keep such information confidential; (d) independently developed by Receiving Party without access or reference to Disclosing Party's Confidential Information; and (e) released from confidential treatment by written consent of Disclosing Party. Any combination of features or disclosures shall not be deemed to fall within the foregoing exclusions merely because certain individual features are published or available to the general public or in the rightful possession of Receiving Party unless the combination as a whole falls within any of the above exceptions.
Except as required in accordance with this Agreement, Receiving Party agrees not to disclose or use, from and after the Effective Date or for any purpose, any Confidential Information without the prior written consent of Disclosing Party, to be given or withheld in Disclosing Party's absolute discretion. Receiving Party shall take all necessary and reasonable precautions to prevent the disclosure of Confidential Information to any unauthorized third parties. To the extent it is necessary for Receiving Party to disclose Confidential Information to a Member in accordance with this Agreement, Receiving Party must (i) advise such Member of the confidential nature of the information, (ii) instruct such Member to take all necessary and reasonable precautions to prevent the unauthorized disclosure of the information and (iii) ensure such Member is bound by obligations of confidentiality at least as stringent as those set forth in this Section. Notwithstanding the foregoing, Confidential Information may be disclosed to the extent required by applicable laws or regulations or as ordered by a court or other regulatory body having competent jurisdiction provided that Receiving Party uses its best efforts to limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice of such disclosure to Disclosing Party.
Receiving Party acknowledges that the use or disclosure of Confidential Information without Disclosing Party's express written permission may cause Disclosing Party irreparable harm and that any material breach or threatened material breach of this Agreement by Receiving Party will entitle Disclosing Party to seek injunctive relief and reasonable attorneys' fees, in addition to any other legal remedies available to it, in any court of competent jurisdiction.
8. Intellectual Property. Both parties acknowledge that each owns significant intellectual property rights. The parties do not, by their execution of or performance under this Agreement, intend to confer any rights of ownership or use or license of any kind in the intellectual property owned by either party or any third party prior to the date of this Agreement, other than such rights as are specifically provided for in this Section 6.
Client grants Crowdtap a royalty-free, non-transferable, non-exclusive license to use Client's trademarks, logos, trade names, copyrights and other intellectual property provided by Client (“Client IP”) solely for purposes of the Agreement. Crowdtap acknowledges that Client is and will be the sole owner of any Client IP and that nothing contained herein shall constitute an assignment of such rights or grant to Crowdtap any right, title or interest therein, except the rights to use the Client IP in any promotional materials for the Program (“Promotional Material”) as specifically set forth herein. Crowdtap agrees that it will not contest Client's ownership of such rights, challenge the validity of such rights, or take any action in derogation of such rights. Crowdtap shall not register the Client IP in any forum or in any jurisdiction and Client shall retain the exclusive right to apply for and obtain registrations for the Client IP throughout the world.
Crowdtap grants Client a royalty-free, non-transferable, non-exclusive license to use Crowdtap's trademarks, logos, trade names, copyrights and other intellectual property provided by Crowdtap (“Crowdtap IP”), solely for purposes of the Agreement. Client acknowledges that Crowdtap is and will be the sole owner of any Crowdtap IP and that Crowdtap IP includes, but is not limited to, the Crowdtap trademarks, logos, trade names, software code, designs, copyrights and other intellectual property included therein, which shall include, but is not limited to, the Crowdtap platform, actions, results and data gathered poll, survey, discussion and other actions conducted on Crowdtap (collectively, “Research Materials”), Member profile information and data, user generated content of Members, and any other information gathered through actions. Nothing contained herein shall constitute an assignment of such rights or grant to Client any right, title or interest therein, except the rights to use the Crowdtap IP solely to the extent it is included in any Research Materials as specifically set forth herein and in compliance with all applicable federal, state and local laws, rules and regulations. Client agrees that it will not contest Crowdtap's ownership of such rights, challenge the validity of such rights, or take any action in derogation of such rights. Client shall not register the Crowdtap IP in any forum or in any jurisdiction and Crowdtap shall retain the exclusive right to apply for and obtain registrations for the Crowdtap IP throughout the world.
9. Term and Termination; Survival. This Agreement shall take effect upon the Effective Date on which Client signs an Insertion Order and shall continue to be in full force and effect for so long as Client and Crowdtap mutually desire (the “Term”), but for not less than the term of any active Subscription. Crowdtap has the right to immediately terminate this Agreement at any time for any reason or no reason. Upon termination of this Agreement by Client for any reason other than due to breach of this Agreement by Crowdtap, Client shall forfeit any unused credits and lose access to the Crowdtap platform and related Crowdtap, Action or Member data. The provisions of Sections 2, 5, 6, 7, 8, 10, 12 of this Agreement shall survive the termination of this Agreement.
10. Service Interruption. Client acknowledges that the services provided by Crowdtap in connection with this Agreement is of such a nature that service can be interrupted for many reasons other than the negligence of Crowdtap and that damages resulting from any interruption of service are difficult to ascertain. Therefore, Client agrees that neither Crowdtap nor its affiliates, agents, employees, licensors or third party service providers (collectively, the “Affiliates”) shall be liable for any damages (i) arising from such causes beyond the direct and exclusive control of Crowdtap; (ii) that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission or any failure of performance through no fault of Crowdtap; (iii) for failures caused by third party hardware or software (including Client's own systems); (iv) that result from third party misuse of any website created by or at the direction of Crowdtap for the benefit of Client; or (v) the negligence or willful misconduct of Client or Client's Affiliates. Further, neither Crowdtap nor Crowdtap's Affiliates shall be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including any act of Force Majeure as provided herein, communication failure, theft, Denial of Service attacks, destruction or unauthorized access to Crowdtap's records, programs or services, strike or other industrial disturbance, failure to transport, accident, riot, insurrection, order of governmental agency or any other act of God. Neither Crowdtap nor Crowdtap's Affiliates warrant that Crowdtap's service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through Crowdtap's service.
11. Assignment. This Agreement shall not be assignable by Client without the prior written consent of Crowdtap, which consent may be granted or denied in the sole discretion of Crowdtap. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, successors and permitted assigns.
12. Disputes. All claims or disputes between Client and Crowdtap arising from or relating to this Agreement shall be mutually resolved, if possible, through good faith mediation between the parties. In the event no resolution occurs within sixty (60) days of good faith mediation, the parties may exercise any dispute resolution mechanism available at law.
13. Force Majeure; Performance Excused. Except as otherwise provided in this Agreement, neither party shall be liable or deemed in default for failure to perform any duty or obligation that such party may have under this Agreement where such failure has been occasioned by any act of God, fire, strike, inevitable accidents, war or any other cause outside the reasonable control of that party and occurring without its fault or negligence. The party whose performance has been so interrupted shall give the other party notice of the interruption and cause thereof, and shall use every reasonable means to resume full performance of this Agreement as soon as possible.
14. Publicity. Client agrees that Crowdtap may use Client's name, trademarks and other forms of Client IP in any news release, public announcement, advertisement, client list or other form of publicity that Crowdtap creates, generates and/or distributes, whether written or oral, which describes the services performed by Crowdtap for Client and refers to the existence of an arrangement between Client and Crowdtap, provided Crowdtap obtains prior approval from Client, such approval not to be unreasonably withheld.
15. Notice and Delivery. Under this Agreement, if a party is required or permitted to deliver or submit written notice to the other, such delivery shall be on business days by courier (e.g., Federal Express, UPS or the like) and addressed to the recipient party as set forth in the introductory paragraph of this Agreement. Notice shall be deemed given upon receipt.
16. Waiver. The waiver by any party of a breach of any provision of this Agreement will not be construed as a waiver of a subsequent breach of the same provision by that party or the breach of any other provision of this Agreement. The delay or failure of a party to exercise any right or remedy under this Agreement will not constitute a waiver by that party of any breach of this Agreement. Any waiver of any breach under this Agreement must be in writing.
17. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, without reference to its principles of conflicts of law. The parties consent to the jurisdiction of the federal and state courts located within the State of New York.
18. Entire Agreement. The terms and conditions contained in this Agreement, and any and all attached exhibits and schedules, constitute the entire agreement between the parties with respect to the subject matter hereof. All prior agreements, representations, statements, negotiations and undertakings, whether written or oral, are hereby superseded.
19. Headings. The headings used in this Agreement are for convenience only and are not meant to define, limit or describe the scope of the intent of any terms or provisions of this Agreement.
20. Severability. In the event any of the provisions of this Agreement, or portions or applications thereof, are held to be unenforceable or invalid by any court of competent jurisdiction, such invalid or unenforceable provision, or portion or application thereof, shall in no way affect the validity or enforceability of the remaining provisions, or portions or applications thereof.
21. Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed to be an original, and all of which, when taken together, shall be deemed to constitute one and the same instrument.