Survey.com (“Survey.com”, “we”, “us”, “our”) is a service operated by BET Information Systems, Inc. (“BET”) that enables Survey.com’s clients (“Clients”) to send Survey.com’s network of contractors (“Users”, or “you”) to stores to complete retail services. Users have access to the Merchandiser by Survey.com and Survey Retail mobile applications (“Application” or “Applications”) to receive, discover, and review retail services opportunities in their area; to Request or Claim stores in which they will perform the retail services; to create and submit their Deliverables; and to manage and request Payments.
Please review the following terms carefully (this “Agreement”). This Agreement is an electronic contract that sets out the legally binding terms of relationship between Survey.com and you. THESE TERMS WILL GOVERN YOUR USE OF OUR SERVICES. BY ACCEPTING THIS AGREEMENT, USING THE SERVICES, AND COMPLETING STORE VISITS, YOU ARE AGREEING TO THESE TERMS.
This agreement contains a mandatory individual arbitration and class action / jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
Use of the Services is permitted only by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, you must be at least 18 years old to become a Survey.com User. If you do not qualify, please do not install our Application or register an Account with Survey.com.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 Our “Service” provides you with a way to earn money by completing Projects in stores.
1.2 A “Project” is the collection of tasks and/or services Survey.com’s Client wants performed by a User. Projects are offered through the Application to one or more Users and include a description of the services to be provided, the estimated time it will take to complete the services, the date and time by which the services must be completed (“deadline”), the rate of payment associated with the Project (the “Payment”), and a list of stores the User may Request and/or Claim. Projects and descriptions are published to our Application. Users may be alerted about Projects via email, SMS (“text message”), phone call, or push notification.
1.3 “Survey.com Mobile Application” or “Application” means the software application(s) used by Survey.com in connection with the Services.
1.4 Users may “Request” a store or stores associated with a Project to indicate interest in completing the Project in those stores or stores within the stated timeframe and for the stated rate of pay. Do not request a store unless you are sure you understand what you are being asked to deliver.
1.5 An “Assignment” is a store associated with a Project that has been assigned to a User to complete. Survey.com has the sole discretion as to which stores it assigns to which users. Survey.com may assign the same store to more than one User. Survey.com may remove assignments from a User at any time without notice or penalty.
1.6 “Claiming” is the process by which a User self-assigns a store or stores from a Project. By Claiming a store or stores, the User agrees to complete all required tasks specified in the Project description by the deadline and for the stated rate of payment. Do not claim a store unless you are sure you understand what you are being asked to deliver and are sure you can complete the Project on or before the Deadline.
1.7 A “Store Visit” (or “Visit”) is when a User attempts to perform the services specified by a Project in an assigned store. The Application lists all tasks required to complete each Visit. For any Visit, you agree to use your best efforts to complete all tasks such that the Deliverables are satisfactory to us and the Survey.com Client. By accepting an Assignment or Claiming a store, you are entering into a binding legal agreement with Survey.com to provide the Deliverables for the Payment specified in the Project description.
1.8 The “Deliverables” are the photos, videos, audio files, text-based comments, and information generated during the Store Visit that will be delivered by Survey.com to a Client. Once you have completed all requirements specified in the Project Description, you must upload the Deliverables to Survey.com through the Application. Failure to upload the complete Deliverables may result in all or a portion of the payment being withheld.
1.9 Our “Review Process” is the time we take to review your deliverables for accuracy, validity, and completeness. Your Deliverable can be approved (made available for payment requests) or invalidated (rejected and not available for payment request.) If there are problems with your Deliverable, you may be required to return to the store to provide additional information or complete tasks that were not completed on the original Visit. If you choose not to do so, all or a portion of the Payment may be withheld. During the time that a Deliverable is in the Review Process, you are unable to request payment for that Visit. Once approved, you are able to request the Payment.
2.2 Member Account, Password and Security. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Survey.com of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Survey.com will not be liable for any loss or damage arising from your failure to comply with this Section.
2.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Service, including but not limited to, a mobile device that is suitable to connect with and use the Application. By accessing and using the Service through the Survey.com Mobile Application you acknowledge and agree that you may receive certain communications from us and you agree and acknowledge that you are solely responsible for all fees you may incur from the provider or carrier of the mobile services that you use, including for data. When you use the Service, our Application may pull your location-based information from your mobile device. You hereby authorize us and our Application to take such action.
2.4 Background Check. In the Company’s sole discretion, Users may be subject to a vetting process before they can receive Assignments or Claim stores, including but not limited to a verification of identity, and a criminal background check, at the Country, State, and local levels. Users hereby give consent to Company to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act. Survey.com is not required to conduct background checks and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Survey.com Application.
2.5 No Conflicts. You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any Store Visit, or that is otherwise inconsistent with this Agreement, or any Store Visit.
2.6 Modifications to Service. Survey.com reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Service (or any part thereof) with or without notice. You agree that Survey.com shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application or the Services.
2.7 Use and Storage. You acknowledge that Survey.com may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Survey.com’s servers on your behalf. You agree that Survey.com has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Survey.com reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Survey.com reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Projects may be posted on the Service on behalf of Clients, but you do not work for and you are not hereby contracting with any such Client. Additionally, even a Letter of Authorization shall not constitute a relationship with the Client. YOU ACKNOWLEDGE AND AGREE THAT NO CLIENT WILL HAVE ANY RESPONSIBILITY OR LIABILITY TO YOU WITH RESPECT TO THE SERVICES.
Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Survey.com and you or between the Client and you. You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Survey.com that is inconsistent with your being an independent contractor (and not an employee) of Survey.com. As an independent contractor, you shall accept any directions issued by Survey.com pertaining to Projects (including any instructions or requirements posted on the Service), but you are solely responsible for determining which Projects you will choose to accept, how, when and where you will provide the requested services. YOU ACKNOWLEDGE AND AGREE THAT YOU REMAIN SOLELY RESPONSIBLE FOR YOUR PERFORMANCE OF YOUR STORE VISITS, AND WE SHALL HAVE NO LIABILITY TO OTHERS WITH RESPECT TO YOUR ACTIONS OR INACTION.
Without limiting the generality of the foregoing:
3.1 Benefits and Contributions. You are not entitled to or eligible for any benefits that Survey.com, its parents, subsidiaries, affiliates or other related entities may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, Survey.com will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf. If, notwithstanding the foregoing, you are reclassified as an employee of Survey.com, or any affiliate of Survey.com (“Affiliate”), by the U.S. Internal Revenue Service (“IRS”), the U.S. Department of Labor (“DOL”), or any other federal, state or foreign court or agency, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by either the Client and its parents, subsidiaries, affiliates or related entities or by Survey.com, its parents, subsidiaries, affiliates or other related entities.
3.2 Taxes. You agree that it is your responsibility to determine any and all taxes and duties, including without limitation, sales, use, transfer, value added, withholding and other taxes and/or duties assessed, incurred or required to be collected, paid or withheld for any reason in connection with any request for, or performance of Services, or your use of the Site, or otherwise in connection with any action, inaction or omission of you or any of affiliate of yours, or any of your or their respective employees, agents, contractors or representatives ("Taxes") and to collect, withhold, report, and remit correct taxes to the appropriate tax authority, and to otherwise be responsible for the collection and payment of any and all Taxes. You agree to provide Survey.com and its Affiliates with certain tax information upon request. YOU ALSO AGREE THAT SURVEY.COM AND ITS AFFILIATES ARE NOT RESPONSIBLE TO COLLECT, REPORT, OR REMIT ANY TAXES ARISING FROM ANY TRANSACTION.
3.3 Compliance with Law. You will comply with all applicable federal, state, local, and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions.
3.4 Insurance. You acknowledge that you are an independent contractor, not an employee of Survey.com. As such, you are not covered by any insurance that may be provided by Survey.com to its employees, including, without limitation, health insurance, workers compensation insurance, general liability insurance, and automobile liability insurance. As an independent contractor, you are solely and exclusively responsible for your own insurance. Specifically, in the event that you are injured while working in the course and scope of an engagement for Survey.com, you acknowledge and understand that you will not be covered by any workers compensation insurance coverage that Survey.com may provide to its employees. Further, in the event that your actions cause an injury to a third party while you are working in the course and scope of an engagement for Survey.com, you acknowledge and understand that you will not be covered by any general liability or automobile liability insurance coverage that Survey.com may have, and that Survey.com is not making any commitment to defend and/or indemnify you in such circumstances, and specifically denies such obligation.
3.5 Injury. Survey.com shall not be liable or responsible for any injuries you sustain in making or submitting Store Visits, including slips or falls while in a store completing a Store Visit, or while you are traveling to the store to complete Store Visits.
4.1 Your Obligations. By accepting an Assignment or Claiming a store, you hereby represent, warrant, and agree:
4.2 Disclaimer. We do not represent or endorse, and shall not be responsible for: (a) the safety, quality, accuracy, reliability, integrity or legality of any Project, the truth or accuracy of the description of any Project, any other third party website referenced or described by or accessible through the Service, or any Survey.com Client or other third party advice, opinion, offer, proposal, statement, data or other information (collectively, "Content") displayed through the Services; or (b) your ability or inability to obtain any Payment (s). We reserve the right (but shall have no obligation) to remove any or all Projects or other Content at any time. You agree to release us and its agents, contractors, officers and employees, from all claims, demands and damages (actual and consequential) arising out of or in any way connected with your dispute with any Survey.com Client, in connection with the Survey.com Mobile Application. You agree that you will not involve us in any litigation or other dispute arising out of or related to any transaction, agreement, or arrangement with any Survey.com Client.
4.3 Assignment Removal. You also accept the possibility that you may walk or drive to a store to complete an Assigned Store Visit but then find that another User has accepted and/or submitted the same Store Visit prior to your arrival at the store, and Survey.com shall have no liability to you for such missed opportunities or for any temporary interruption or permanent termination of the Services.
You agree that you are solely responsible for your interactions with any other User, store personnel, shoppers, or pedestrians in connection with the Service and Survey.com will have no liability or responsibility with respect thereto. Survey.com reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
6.1 Delivery. You agree that you will use the Service and Survey.com Mobile Application to provide the Deliverables for each Store Visit to Survey.com as described in each Project description on or before the deadline specified in the Project Description.
6.2 Ownership. You agree that the Deliverables will be the sole and exclusive property of Survey.com. You hereby irrevocably and unconditionally assign to Survey.com all right, title and interest worldwide in and to the Deliverables and all intellectual property rights thereto, including but not limited to all copyrights, moral rights, and similar rights of every kind and nature. If any intellectual property rights, including moral rights, cannot (as a matter of law) be assigned by you to Survey.com, then (a) you unconditionally and irrevocably waive the enforcement of such rights and all claims and causes of action of any kind against Survey.com with respect to such rights, and (b) to the extent you cannot (as a matter of law) make such waiver, you unconditionally grant to Survey.com an exclusive, perpetual, irrevocable, worldwide, fully-paid license, with the right to sublicense through multiple levels of sublicensees, under any and all such rights to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit and otherwise use the Deliverables in any medium or format, whether now known or hereafter discovered, and to exercise any and all other present or future rights in the Deliverables. At Survey.com’s request, you will (i) cooperate and assist Survey.com both during and after the term of this Agreement, in perfecting, maintaining, protecting and enforcing Survey.com’s rights in the Deliverables, and (ii) execute and deliver to Survey.com any document deemed necessary or appropriate by Survey.com in its discretion to perfect, maintain, protect or enforce Survey.com’s rights in the Deliverables or otherwise carry out the purposes of this Agreement. You hereby irrevocably designate and appoint Survey.com and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf to execute, deliver and file any and all documents with the same legal force and effect as if executed by you, if Survey.com is unable for any reason to secure your signature on any document needed in connection with the actions described in this section. You acknowledge that this appointment is coupled with an interest.
Payments will be in the denomination and currency of Survey.com’s choosing. Survey.com will not pay you for a Store Visit if our Quality Assurance department (“QA”) rejects the Deliverables associated with that Store Visit or if you otherwise breach this Agreement. You are responsible for paying all applicable taxes and for all expenses incurred by you in connection with performing the Store Visits or otherwise performing your obligations under this Agreement. We may be obligated by law to obtain tax information from you and/or provide certain information to government authorities. If we request tax information from you and you do not provide it, we may (in addition to any other rights or remedies available to us) withhold your Payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
7.1 Pay Periods. Survey.com has three pay periods each month. Pay periods begins on the 1st, 10th, and 20th of each month and span three business days each. If the 1st, 10th, or 20th fall on a weekend or holiday, payments begin on the following business day. Business days do not include weekends or holidays. The pay periods cover payment requests made on or before the 1st, 10th, and 20th of each month. We cannot tell you the specific day or time you will be paid. The date and time you request your payment does not affect the specific date / time you will be paid.
7.2 Gas and Transportation Expenses. Survey.com is under no obligation to reimburse you for gas, tolls, parking, or other transportation-related expenses. Survey.com may choose to reimburse you for such expenses, but that must be agreed upon in writing prior to accepting an Assignment or Claiming a store.
8.1 Use and Disclosure. From time to time, you may be given access to confidential information in the course of performing Store Visits that you receive through Survey.com. During the term of this Agreement and at all times thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining Survey.com’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to Survey.com’s or any Client’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties including Customers) that Survey.com and/or the Client considers to be confidential or proprietary or Survey.com has a duty to treat as confidential.
8.2 Standard of Care. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature, and with no less than reasonable care.
8.3 Reverse Engineering. You will not attempt to reverse engineer, de-encrypt, or otherwise derive the design, internal logic, structure or inner workings (including algorithms and source code) of the Survey.com Mobile Application, any other software, products, models, prototypes, or other items provided by Survey.com that use, embody, or contain Confidential Information.
8.4 Exceptions. Your obligations under Sections 4.1 and 4.2 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to Survey.com’s first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. Additionally, you will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by Survey.com, or is required by law or court order, provided that you immediately notify Survey.com in writing of such required disclosure and cooperate with Survey.com, at Survey.com’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
8.5 Removal; Return. Upon Survey.com’s request and upon any termination or expiration of this Agreement, you will promptly (a) return to Survey.com or, if so directed by Survey.com, destroy all Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to Survey.com in writing that you have fully complied with these obligations.
9.1 General. You represent, warrant, and covenant that:
(a) You will not, in the course of performing any Store Visit, infringe or misappropriate, and neither the Deliverables nor any element thereof will infringe or misappropriate, any intellectual property right or other of any other person, including rights of privacy and publicity; (b) All Deliverables and all elements thereof are your original works and you have all rights necessary to grant the rights set forth in this Agreement; Neither the Deliverables nor any element thereof will be subject to any restriction, mortgage, lien, claim, pledge, security interest, or encumbrance when delivered by you to Survey.com; (d) You will not grant, directly or indirectly, any right or interest in any Deliverable to any other person; (e) You have full right, power, and authority to enter into and perform this Agreement without the consent of any third party (including any of your current or former employers); (f) The Deliverables will fully conform to the specifications, requirements, and other terms in the applicable Project and this Agreement, and will be of a professional and workmanlike quality. In the event of a breach of this warranty, without limiting any other rights or remedies Survey.com may have, you will promptly replace the Deliverables at no additional charge to Survey.com.
9.2 Indemnity and Release. You agree to release, indemnify and hold Survey.com and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
9.3 Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL STORE VISITS ARE AT YOUR OWN RISK.
SURVEY.COM MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SURVEY.COM WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SURVEY.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE (INCLUDING WITHOUT LIMITATION, THE INABILITY TO COMPLETE OR SUBMIT THE SHIFT DUE TO TECHNICAL OR COMMUNICATION ISSUES); (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) YOUR ACTIONS IN CONNECTION WITH THE SERVICE, AND EXCEPT FOR SURVEY.COM’S PAYMENT OBLIGATIONS EXPRESSLY PROVIDED HEREIN, YOUR PERFORMANCE OF ANY STORE VISITS; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL SURVEY.COM’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID SURVEY.COM IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
11.1 Termination by Survey.com. You agree that Survey.com, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Survey.com believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Survey.com may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Survey.com may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Survey.com will not be liable to you or any third party for any termination of your access to the Service.
11.2 Termination by You. You may terminate this Agreement at any time with written notice to Survey.com. The termination will be effective immediately and all Assignments will be removed from your Account. Any unpaid Payments from completed Store Visits will be made according to our normal policy. Store Visits that are in the Review Process will be reviewed and handled according to our normal policy.
11.3 Survival. The terms of this Agreement will survive any termination or expiration of this agreement. Termination or expiration of this Agreement will not affect either party’s liability for breach of this Agreement such party may have committed before such expiration or termination.
12.1 Governing Law; Venue. This Agreement is governed by the laws of the State of Delaware without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. You irrevocably consent to the personal jurisdiction of the state and federal courts located in Delaware for any suit or action arising from or related to this Agreement, and waive any right you may have to object to the venue of such courts. You further agree that these courts will have exclusive jurisdiction over any such suit or action initiated by you against Survey.com.
12.2 Arbitration. If any dispute, controversy or claim arises between the parties under, out of, or in relation to this Agreement, including any dispute concerning the formation, construction, interpretation, or breach of this Agreement or a party’s performance of its obligations hereunder ("Dispute"), the parties shall attempt in the first instance to resolve the Dispute through mutual good faith consultation. If the Dispute is not resolved in this manner within forty-five (45) days of a party’s notice of a Dispute, then any party may serve a notice on the other party requiring the Dispute to be submitted to arbitration as follows:
12.2.1 Any Dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than five thousand U.S. Dollars (US$ 5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney Rewards) and disbursements arising out of the arbitration, and shall pay an equal share of the Rewards and costs of the ADR Provider.
12.2.2 Any other Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the "Rules") and shall be administered by the Boston, Massachusetts office of JAMS (the "Administrator"). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be Boston, Massachusetts USA. The Dispute(s) shall be submitted to a single arbitrator ("Arbitrator") chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ Rewards, costs and disbursements (including, for example, expert witness Rewards and expenses, photocopy charges, travel expenses, etc.), and/or the Rewards and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.
12.2.3 By using the Service in any manner, you agree to the above arbitration provision. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Survey.com (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Notwithstanding the foregoing, either party may proceed directly to any court of competent jurisdiction to seek protection or enforcement of its intellectual property rights and/or to seek injunctive relief or other equitable relief.
12.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.4 No Assignment. This Agreement and your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without Survey.com’s express prior written consent. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Survey.com may assign this Agreement or any of its rights under this Agreement to any third party with or without your consent.
12.5 Notices. Survey.com may give any notice required by this Agreement by means of a general notice on the Service, electronic mail to your email address on record with Survey.com, or by written communication sent by first class mail or pre-paid post to your address on record with Survey.com. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Survey.com, addressed to the attention of Panagiotis Bethanis. Such notice shall be deemed given when received by Survey.com by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the following address: 51 Melcher Street, Boston, MA 02210.
12.6 Remedies. Survey.com’s remedies for any breach of this Agreement by you will include damages, injunctive relief, specific performance, and restitution. You acknowledge that any breach of this Agreement by you would cause irreparable injury to Survey.com for which monetary damages would not be an adequate remedy and, therefore, Survey.com will be entitled to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
12.7 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.8 Entire Agreement; Amendments. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties. Except as permitted herein, no modification of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged.
12.9 Feedback. In the event that you provide Survey.com with any feedback regarding the Service or the Survey.com Mobile Application, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the Service or the Survey.com Mobile Application ("Feedback"), you hereby assign to Survey.com all rights in the feedback, including but not limited to, the right to use such feedback and related information in any manner we deem appropriate.
B.E.T. Information Systems, Inc. 2017