Independent Contractor Services Agreement
Survey.com (“Survey.com”, “We”, “Us”, “Our”) is a service operated by BET Information Systems, Inc. (“BET”) that enables Our clients (“Clients”) to post retail merchandising and retail services gigs for Our network of independent contractors (“Users”, or “You”) to view, negotiate, accept, perform, and complete (the “Services”). Users have access to the Services through the mobile application, Merchandiser by Survey.com, and Our Services platform (“Application” or “Applications”). By registering an account on the Application(s) as a User, You and other independent contractors are able to utilize Our Application(s) to receive, discover, and review retail services opportunities in their area; to request or claim stores or posted gig opportunities in which Users 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 a contract that sets out the legally binding terms of relationship between Survey.com and You. THESE TERMS WILL GOVERN YOUR USE OF OUR APPLICATION. BY ACCEPTING THIS AGREEMENT, REGISTERING AS A USER, USING THE APPLICATION, AND COMPLETING RETAIL MERCHANDISING AND RETAIL SERVICE GIGS, YOU ARE AGREEING TO THESE TERMS.
If You do not agree to these terms, You must cease use of the Application and not accept any Store Visit assignments. Your use of our Applications or any other BET software, application, or service platform licensed through a third party distributor such as the Apple App Store or Google Play is also governed through the applicable current end user license agreement, which is made available through the third party distributor with the understanding that if a there is a conflict between any provision in this Agreement and the end user license agreement(s), the conflicting provision in this Agreement will prevail. Similarly, Your use of our Application(s) or any other BET software, application, or service platform may also require You to register, create and maintain accounts and enter into, or accept, terms of service or agreements with third party vendors or other service providers, such as payment processors.
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 any and all disputes between You, a User, and Survey.com, rather than jury trials or class actions.
Use of the Application(s) 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 of age to become a Survey.com User. If You do not qualify, do not install our Application or register an Account with Survey.com. We reserve the exclusive right and ability to suspend or delete User Accounts that We, in our sole discretion, believe may not qualify to use Our Application(s) and/or Services. By creating an account, using or accessing Our Application(s) and/or by accepting this Agreement, You affirm that you are at least 18 years of age and are fully capable of entering into legal, enforceable contracts in your jurisdiction.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
1.1 “Application” or “Applications” mean the software and mobile application(s), owned, operated, used, or licensed by Survey.com in connection with its services, including but not limited to, the Merchandiser by Suvery.com mobile application.
1.2 An “Assignment” is a Project or one of more portions of a Project that has/have been assigned to a User in the Application(s) to perform and 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, consent, or penalty, and will not be liable in any way, manner, or amount to any effected User.
1.3 An “Audit” is a task and/or service performed by a User that involves reporting on product presence, price, inventory, number of facings, and promotion status. Audits may include or require Users to take and submit photographs or videos, and/or the input of data or information by and through the Application and/or other Services.
1.4 “Brand Representation” is a task and/or service performed by a User that involves meeting with a third-party store or department manager, usually in-person, and discussing a certain brand and/or products with the goal of increasing the brand and/or products distribution with a given store or department.
1.5 “Claim(ing)” is a process by which a User accepts and agrees to complete a Project and/or self-assigns a store, or stores, from a Project. By Claiming a Project, or certain store or stores associated with a Project, the User agrees to complete all required tasks specified in the Project Description by the Project Deadline, and for the stated or negotiated rate of Payment. Do not Claim a Project or 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 Project Deadline. Projects and/or stores may be Claimed by one or more Users.
1.6 “Community Sampling” is a type of task or service that requires a User to purchase certain products and quantities, and in the manner, location(s), date(s) and time period(s) designed by a Client. Subject to the terms negotiated by the User for Projects involving Community Sampling, Users may be required to purchase such products using their own money as an expense, and can be reimbursed for authorized purchases. Users are solely responsible for complying with the terms of the Community Sampling Project as well as for complying with all applicable terms regarding reimbursement for authorized purchases. Failure to seek or comply with the terms of a given Project, including reimbursement terms and processes, may result in losses to a User, and by agreeing to complete a Project, Users shall be deemed to understand and acknowledge the risk of losses associated therewith.
1.7 “Deliverables” are the photos, videos, audio files, text-based comments, and information generated, completed, submitted and/or uploaded by Users during a Store Visit using the Application(s) to complete a Project. All Deliverables are determined by the Client in connection with a Project, and are subject to the Client’s stated standards and requirements as specified in the Project Description, as well as subject to the Client’s ultimate approval and acceptance. Failure to upload the complete Deliverables in accordance with the terms of the Project Description may result in all or a portion of the Payment for the Project being withheld. Users may also be required to correct and re-submit or re-upload Deliverables and failing to do so may also result in all or a portion of the Payment for the Project being withheld.
1.8 “Demos” or “In-Store Sampling” is a type of task or service that requires a User to set up a table, display, or product demo station in a store and hand out product samples, answer questions, and promote the trial of certain products as designated by the Client and the terms of a given Project.
1.9 “Deactivation” or “Deactivated” refers to deactivation of a User’s Account. Consistent with the terms and descriptions in Section 11 of this Agreement, deactivation of an Account may be permanent or for an extended period of time (likely to exceed 30 days), and can include, at Our sole discretion, the deletion of a User’s Account and some or all data or information associated to the Account. Deactivated Accounts will be unable to access or use any portion of the Services or Applications without the express consent and approval of Survey.com
1.10 “Merchandising” is a type of Project that involves Users completing Store Visits that may involve various merchandising tasks and/or services, including for example, setup promotional displays, stocking shelves, neatening or organizing product presentations, changing price tags, and/or adding promotional materials.
1.11 A “Project” refers to tasks and/or services, or a collection of tasks and/or services, Survey.com’s Client wants performed by a User. Projects are posted on, and made available to Users through the Application. Projects include a description of the tasks and/or services to be provided, the estimated time it will take to complete the services, the date and time by which the Project must be completed (“Project Deadline”), the rate and/or amount of payment associated with the Project (the “Payment”), and a list of stores the User may request and/or Claim in connection with a given Project (the “Project Description(s)”). Projects and Project Descriptions are published to Our Application and are available for Users to review prior to Claiming (i.e. agreeing to, or accepting) or requesting Assignment of a Project or stores associated with a Project. Payments vary by Project, depending on the scope and nature of the Project and other factors. Users may also be able to negotiate Payment for Projects and/or Store Visits in/through the Application, prior to Claiming and receiving an Assignment. Users may be alerted about Projects in their area via email, SMS (“text message”), phone call, or push notification.
1.12 “Resets” are a type of task and/or service performed by Users in connection with a Project that involves rearranging, relocating, rebuilding, reassembling, and/or restocking of product presentations, shelves, displays, in either certain sections or entire stores. We do not manage or facilitate Resets, or the performance or completion of Resets in any way. Resets are managed and/or overseen by third parties that are not associated with Us, and Users may be subject to the direction, instructions, or specifications of such third-parties in connection with competing a Reset.
1.13 Our “Review Process” is the time We take to review Your Deliverables for accuracy, validity, and completeness in accordance with the requirements and standards designated by the Client and the Project Description. The result of the Review Process is that your Deliverable(s) 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 or of an acceptable quality from the original Visit. If you choose not to do so, all or a portion of the Payment may be withheld until the complete Deliverables are provided, or otherwise forfeited by a User if Deliverables are not successfully completed on or before the Project Deadline. During the time that a Deliverable is in the Review Process, you are unable to request Payment for that Visit. Once the Review Process is complete and the Deliverables are approved, you are able to request the Payment.
1.14 A “Store Visit” (or “Visit”) is when a User travels to a certain merchandise retailer to perform and complete the tasks and/or services specified by a Project. The Project Description published in the Application describes the tasks and/or services designated and/or required by the Client for the User to complete during (each) Store Visit.
1.15 “Suspension” refers to the placement of various limitations or restrictions to/on a User’s Account, which can include or have the effect of, without limitation, a User’s inability to access or use some or all of the Services and/or Applications or the User’s Account, including certain features, functions, or abilities, such as, for example, and without limitation, a User’s ability to view Projects, Claim or receive Assignments, and/or request or receive Payments.
- Access and Use of Service
2.1a Obligation to Provide Accurate & Identifying Information. If You provide any information that is untrue, inaccurate, not current or incomplete, or if Survey.com, in its sole discretion, suspects or believes that such information is untrue, inaccurate, not current or incomplete, Survey.com has the right to suspend, deactivate and/or terminate Your Account, with or without notice or opportunity to cure by the User, and refuse any and all current or future Project Assignments or Claims. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself unless You have received express authorization from that person or entity and advanced written approval from Survey.com. You agree that You will provide proof of Your identity at Survey’s request, by providing one or more forms of Personally Identifiable Information, including but not limited to: a scan of your driver’s license, photo of your passport, or photo of your birth certificate, You agree that You shall not have more than one Account per Application at any given time, unless given advance written approval and consent from Survey.com. Survey.com reserves the right to remove or reclaim any usernames associated with any Users or User’s accounts, at any time, without notice, and for any reason, including but not limited to: claims by a third party that a username violates the third party’s rights; is deemed by Survey.com to be discriminatory, hostile, offensive, may violate applicable laws, rules, or regulations, or be otherwise inconsistent with Survey.com’s own community standards. You agree not to create an Account or use the Service if You or Your account has been previously Deactivated by Survey.com.
2.2 Additional User Registration Obligations. In registering an Account with Survey.com, You may also be required to create and/or register an account with one or more third-parties, including but not limited to, any third-party platform, company, or services provider, which may or may not be designated or required by Survey.com. Such third parties may include, without limitation, payment processing providers, vendors, or services, contractor management vendors or services, and/or digital wallets that must be linked with a User’s Account with Survey.com and/or the Survey.com Application. Failure to create, register, and maintain such required accounts, or failing to comply with the terms of service, or the terms of any agreements or conditions of such third-party accounts will render You ineligible to use or access Our Application(s) or certain features therein, and can result in the Deactivation of Your account with Survey.com, with or without notice or an opportunity to cure, as determined by Us in Our sole discretion.
2.3 Member Account, Password and Security. You are responsible for maintaining the confidentiality and security of Your password and Account, and are fully and solely 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 the Application at the end of each session. Survey.com will not be liable for any loss or damage arising from your failure to comply with this Section.
2.5 Background Check. Users may be subject to a vetting process before they can receive Assignments or Claim stores or Projects from certain Clients, including but not limited to a verification of identity, and a criminal background check, at the Country, State, and local levels. Users will receive an email from Survey.com notifying them of the need to participate in a vetting process and may opt-out of the Project or Store Visit. We do not conduct background checks or receive the results of any background check. Background checks, if any, will be performed and completed by a third-party as directed by a Client, and Clients shall notify Survey.com whether a User is approved to perform the subject Project or Store Visit. Accordingly, Survey.com does not assume, and shall not have any responsibility for, the accuracy or reliability of identity or background check information or any information provided through the Application or to any third-party.
2.6 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, Assignment, or any Store Visit, or that is otherwise inconsistent with this Agreement, Assignment, or any Store Visit. You further represent and warrant that You are not subject to any restrictive covenant or other agreement or duty that would be breached by entering into or performing Your obligations under this Agreement, or which may subject Survey.com, BET, or any of its parents, subsidiaries, affiliates, managers, employees, agents, or representatives to potential liability to one or more third-persons.
2.7 Modifications to Service. Survey.com reserves the right at any time to modify or discontinue, temporarily or permanently, the Application (or any part thereof) with or without notice, including but not limited to certain policies, practices, promotions, incentives, awards, or programs. You agree that Survey.com shall not be liable to You, any User(s), or to any third party in any way, manner, scope, capacity, or amount relating to any modification, suspension or discontinuance of the Application.
2.8 Use and Storage. You acknowledge that, to the extent permitted by applicable law, Survey.com may establish general practices and limits concerning use of the Application(s), including without limitation, the maximum period of time that data or other content will be retained by the Service, the Application, or by Us, including but not limited to, 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, loss, or failure to store any data or other content maintained or uploaded or in/on the Application(s), and that You are solely responsible for maintaining Your own business records as an independent contractor.
2.9 Reimbursed Products. You may be required to purchase items to complete Your Visit or Assignment and will be reimbursed for approved purchases, provided that You submit all documentation specified in the Project Description and instructions in the Application. You may not sell or attempt to sell these items anywhere or to anyone, including but not limited to, on any online or mobile marketplace, including but not limited to Craigslist, Facebook Marketplace, or eBay.
2.10 One Account per Device. You understand and hereby acknowledge and agree that You will not: (a) let another User access their Account from Your mobile device; (b) let another User register an Account on Your Device, even if they plan to access the Application on a different device. When Survey.com detects the presence of two or more Accounts registered on one device, We reserve the right to Deactivate any and all Accounts registered on that device, including the first Account registered to that device.
2.11 One Account per Person. You understand and hereby acknowledge and agree that You will not attempt to create or maintain more than one (1) Account. When Survey.com detects multiple accounts registered to one User or one or more device(s), We reserve the right to Deactivate or Suspend some or all Accounts. Registering multiple Accounts may result in Your Account and any other accounts being suspended or Deactivated.
2.12 Personally Identifiable Information. You understand and hereby acknowledge and agree that You will provide certain personally identifiable information at the request of Survey.com, including but not limited to, a scan of your driver’s license; a photo of your passport, birth certificate, or other photo identification (“Personally Identifiable Information”). Failure to provide requested Personally Identifiable Information may result in your Account being suspended or Deactivated.
- Independent Contractor Relationship
YOU ACKNOWLEDGE AND AGREE THAT YOU ARE AN INDEPENDENT CONTRACTOR, AND ARE NOT AN EMPLOYEE OF, OR EMPLOYED BY, US OR ANY CLIENT. Projects may be posted and/or facilitated on the Application by Us on behalf of Clients, but You do not work for and are not employees or agents of Us or any Clients, and You are not hereby contracting with any such Client. Additionally, even a Letter of Authorization shall not constitute a relationship with a Client or Us. YOU ACKNOWLEDGE AND AGREE THAT NEITHER WE NOR A 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 or BET 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 or BET that is inconsistent with Your being an independent contractor (and not an employee) of Survey.com or BET. As an independent contractor, You shall accept any directions issued by Survey.com pertaining to Projects (including any instructions or requirements posted on the Application or included in the Project Description) akin to a scope of work and otherwise pursuant to the terms of this Agreement, but, for example, and without limitation, You are solely responsible for determining which Projects You will choose to accept, how, when and where You will provide the requested services, and are able to negotiate your rates of pay. YOU ACKNOWLEDGE AND AGREE THAT YOU REMAIN SOLELY RESPONSIBLE FOR YOUR PERFORMANCE OF YOUR STORE VISITS, BEAR SOLE RESPONSIBILITY FOR YOUR OWN OPPORTUNITIES FOR PROFITS AND FOR LOSSES, AS WELL AS YOUR ACTIONS, ERRORS, OR OMMISSIONS, AND WE SHALL HAVE NO LIABILITY TO OTHERS WITH RESPECT TO YOUR ACTIONS OR INACTION.
3.1 Benefits and Contributions. You are not entitled to or eligible for any benefits that Survey.com, BET, 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 Application, 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, BET, and their Affiliates with certain tax information upon request. YOU ALSO AGREE THAT SURVEY.COM, BET, AND THEIR 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 independent contractors and/or self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability and other contributions. You represent, warrant, and agree that You are engaged in an independently established trade, occupation, profession, or business, of the same nature as the services being provided pursuant to this Agreement and that You have a principal place of business that qualifies for an IRS business deduction. You agree that You are responsible for filing at the next applicable filing period, both under this Agreement and in fact, a schedule of expenses with the IRS for the type of business you are conducting. You represent, warrant, and agree that You have established an account with any required state agencies for the reporting and payment of all state taxes normally paid by businesses or self-employed individuals in the state in which You are operating (e.g., if you are a Washington-based User, you have established an account with the Washington Department of Revenue) and obtained a Unified Business Identifier (UBI) number for the business You are conducting for the reporting and payment of all state taxes normally paid by businesses in the state in which You are operating. You acknowledge and agree that You shall and continue to maintain a separate set of books and records that reflect all items of income and expenses of Your business and this Agreement, which You are conducting pursuant to this Agreement.
3.4 Insurance. You acknowledge that You are an independent contractor, not an employee of Survey.com or BET. As such, You are not covered by any insurance that may be provided by Survey.com or BET 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 performing an Assignment from the Application, You acknowledge and understand that You will not be covered by any workers compensation insurance coverage that Survey.com or BET may provide to their employees. Further, in the event that Your actions cause an injury to a third party while You are performing services in the course and scope of an Assignment, 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, losses, damages, delays, or inconveniences You sustain, or may experience, in making or submitting Store Visits, performing or completing Assignments, including slips or falls while in a store completing a Store Visit/Assignment, or while You are traveling to or from the store to complete Store Visits/Assignments.
- Store Visits
4.1 Your Obligations. By accepting an Assignment or Claiming a store, You hereby represent, warrant, and agree:
- You will act and perform the Store Visit in a professional manner;
- You shall not perform any actions related to the Project, including without limitation in submitting of any Store Visit, that may be considered fraudulent or misleading (including without limitation, submitting a Store Visit that You did not complete, or spoofing Your location);
- You will comply with all applicable laws in the course of performing the store visits;
- The deliverables You upload through the Application will conform to the applicable specifications set forth in the Project Description;
- You will not bring any weapons, including but not limited to guns or knives, into a store in which You will be completing an Visit; and
- You will not attempt to complete a Visit while under the influence of drugs or alcohol.
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 or Project Description, the truth or accuracy of the Project Description, any other third party website referenced or described by or accessible through the Application, 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, Project Descriptions 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 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.
4.4 Shipping Projects. You must only Claim or accept Assignments for Shipping Projects if You are certain You can do and complete them. Certain materials or items will be sent to Users to complete Shipping Projects, for example merchandising/promotional materials, product samples, pricing stickers, and product displays. If after receiving the materials You delete the underlying Assignment(s), allow the underlying Assignment(s) to expire, do not complete the underlying Assignment(s), or lost, steal, misappropriate, misuse, or fail to return any materials:
- You will be ineligible for Shipping Projects.
- Your Account may be suspended or Deactivated.
- You will be unable to Claim Assignments or receive Offers.
- You will have to either send the materials back to Survey.com at Your own expense, or Survey.com will add a negative credit to your Account equal to the cost and/or value of the materials, and reserves all rights and abilities to take any other action necessary and available under applicable law to recover the costs and/or value of such materials.
- Disputes With Other Users.
You agree that You are solely responsible for Your interactions with any other User, store personnel, shoppers, or pedestrians in connection with the Application and Your performance of Assignments, and that 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 Application to provide the Deliverables for each Store Visit as described in each Project Description on or before the deadline specified in the Project Description.
6.2 Ownership. You agree that the Deliverables uploaded or submitted by You onto the Application 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.
7.1 Payment Requests. To be eligible for payment for a completed Store Visit a payment request must be made by the User in the Application. The Application’s payment request feature will not be available for a Store Visit until Deliverables associated with that Store Visit have been successfully submitted and accepted after the Review Process has been completed. Survey.com will not pay You for a Store Visit if the Deliverables associated with that Store Visit are incomplete or are rejected during the Review Process, or if You otherwise breach this Agreement or fail to comply with any of its terms. In such circumstances, You acknowledge and agree that any rights, interests, or entitlements, You may or may not have in any Payment, Assignment, Store Visit, or Project are automatically forfeited by You. Payment will be in the denomination and currency of Survey.com’s choosing consistent with the terms of the Project Description and Assignment. You acknowledge and agree that You are responsible for paying all applicable taxes and for all expenses incurred by You in connection with performing the Store Visits and Your Assignments, 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. However, and notwithstanding, You acknowledge and affirm that You, are solely responsible for reporting Payments made to You and for all tax related payments and liabilities relating to Your use of the Application, performance of Services and receipt of Payments.
7.2 Receiving Payment. Payments are processed and made to Users by one or more third-party payment processors, vendors, or services, with whom Users must have, and maintain an active account with, in order to receive Payments. Once a payment request is made in the Application, it will be processed and delivered to the requesting User as soon as possible, and generally within one or two business days from the date the request was made. However, it may take several days after a payment request is made for a payment to be received, especially, but not limited to, instances where there is a high volume of payment requests. Survey.com does not promise, guarantee, and is not obligated to pay Users within a particular amount of time after a payment request is made, or on any particular date or time. Survey.com also is not liable to Users, in any manner or amount, for any direct or indirect losses, damages, fines, penalties, costs, fees, or other harm incurred or experienced by a User relating to the timing of payment requests, the processing of payment requests, the accessing or receipt of payments made to a User by, or on behalf of, Survey.com, and/or relating to any willful, negligent, or reckless act or failure to act committed in whole, or in part, by any third parties, including but not limited to any affiliates, vendors, or agents of Survey.com. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL, OR MAY BE CHARGED THIRD-PARTY FEES AND/OR HAVE CERTAIN DEDUCATIONS TO A PAYMENT BY A THIRD-PARTY PAYMENT PROCESSOR AS A RESULT OF YOUR USE AND CONTRACTUAL PARTICIPATION IN THE SERVICES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL SUCH FEES, PROCESSING CHARGES, COSTS, OR OTHER AMOUNTS CHARGED BY A PAYMENT PROCESSOR, BANK, DIGITAL WALLET, ANY OTHER SERVICE, PAYMENT PROCESSOR, OR VENDOR.
7.3 Forfeiture of Payments. Users must exercise reasonable diligence and request payments for outstanding balances on their Account in a reasonable manner. To the extent permitted by law, Survey.com may not, in its sole discretion, be obligated to pay, or liable for, any amount or Payment associated with a User’s Account where the User fails to request payment for such amounts within one (1) year from the date such amount(s) are earned by the User and posted to their Account. Users acknowledge and agree that a failure to request payment within one (1) year from the date an amount (i.e. monies generated from a particular Store Visit or Deliverable completed by the User) are first made available to the User for payment will be subject to forfeit by the User and that the User shall have no right or entitlement to request or receive payment for such amount(s). Additionally, Users understand and acknowledge that that any amounts associated with their Account which are not requested prior to Deactivation of their Account shall be forfeited and lost.
7.4 Gas and Transportation Expenses. Survey.com is under no obligation to reimburse You for gas, tolls, parking, or other transportation-related expenses. Requests by Users for gas, tolls, parking, or other transportation-related expenses and/or User attempts to negotiate the amount or type of reimbursable expenses are determined on a case-by-case basis subject to Survey.com’s sole discretion. If We choose to reimburse You for such expenses, that must be agreed upon in writing prior to a User accepting an Assignment or Claiming a Store Visit or Project.
8.1 Use and Disclosure. From time to time, You may be given access to confidential information in the course of performing Assignments and 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 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 8.1 and 8.2 will terminate with respect to any particular information that You can prove, by clear and convincing evidence that (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 Return and Destruction of Confidential Information. 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.
- Representation and Warranties
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; (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 Description 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 or the Client.
9.2 Indemnification and No-Liability. You agree that You shall be solely responsible for all taxes due and owing on the amounts paid to You under this Agreement and otherwise in connection with Your use and access of the Services and Applications. You agree to indemnify and hold Us harmless for any amounts any governmental agency determines should have been withheld from payments to You as wages and for any liability assessed by any such governmental agency for failure to withhold from such payments, including but not limited to any fines, penalties or interest. Moreover, to the fullest extent permitted by law, You shall protect, defend, indemnify, and hold harmless Us and Our respective parents, affiliates, subsidiaries, Clients, insurers partners, officers, directors, employees, and agents from and against any and all causes of action, claims, damages, demands, liabilities, losses, suits, and proceedings of every type and character, including attorneys’ fees and costs of litigation, that arise out of, result from, or relate to (a) any act or omission of any Your agents or employees; (b) the performance or mal-performance of Your obligations under this Agreement, (c) You or Your agents or employees’ willful misconduct and gross negligence; (d) the breach of any representation, warranty or covenant in this Agreement by You or Your employees; and/or (e) any claim by Your employees regarding any alleged employment-related claim, including but not limited for discrimination, harassment, and wage and hour claims. Your obligations under this section shall also include, but not be limited to the meeting and/or discharge of any and all causes of action, claims, damages, demands, liabilities, losses, suits, and proceedings of every type and character, as alleged, complained, raised, identified, or filed in any investigation, hearing, action, suit or proceeding, relating to workers’ compensation benefits, unemployment and other wages), emotional distress, compensatory damages, or other violations and penalties, to the maximum extent permitted by law.
9.3 Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE APPLICATION AND PERFORMANCE OF SERVICES IS AT YOUR SOLE RISK, AND THE APPLICATION 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 AND PERFORMANCE OF ASSIGNMENTS ARE AT YOUR OWN RISK.
SURVEY.COM MAKES NO WARRANTY THAT (I) THE APPLICATION WILL MEET YOUR REQUIREMENTS, (II) THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL MEET YOUR EXPECTATIONS.
- Limitation of Liability
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 APPLICATION (INCLUDING WITHOUT LIMITATION, THE INABILITY TO COMPLETE A PROJECT OR ASSIGNMENT, OR SUBMIT THE DELIVERABLES 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 APPLICATION; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE APPLICATION; (V) YOUR ACTIONS IN CONNECTION WITH THE APPLICATION, AND EXCEPT FOR SURVEY.COM’S PAYMENT OBLIGATIONS EXPRESSLY PROVIDED HEREIN, YOUR PERFORMANCE OF ANY STORE VISITS OR PROJECTS OR ASSIGNMENTS; OR (VI) ANY OTHER MATTER RELATING TO THE APPLICATION. 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 APPLICATION OR WITH THE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE APPLICATION.
11.1 Deactivation by Survey.com. You agree that Survey.com, in its sole discretion, may suspend, deactivate, or delete Your account (or any part thereof) or use of the Application and remove and discard any content within the Application, 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 this Agreement or Our policies and standards. You acknowledge that Survey.com reserves the right to suspend, deactivate, or terminate/delete accounts that are inactive for a period of time, as determined by Survey.com in its sole discretion. 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. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of Your use of the Application, may be referred to appropriate law enforcement authorities. Survey.com may also in its sole discretion and at any time discontinue providing the Application, or any part thereof, with or without notice. You agree that any termination of your access to the Application under any provision of the this Agreement may be affected 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 Application. Further, You agree that Survey.com will not be liable to You or any third party for any termination of Your access to the Application. Actions leading to Account Deactivation include but are not limited to: (a) complaints from store personnel, Clients, or other Users about Your behavior while on an Assignment; (b) Abusive behavior to Survey.com staff, either through our systems or on third-party forums (review sites, social media, internet comments, message boards, or otherwise); (c) frequent missed visits; (d) excessive deadline extension requests; (e) sharing a device with another user; (f) contacting a Client without express approval; (g) contacting the corporate office of a Store or retailer without express approval; (h) failure to accept delivery of or pick up materials shipped to You; (i) submitting false or fraudulent information; (j) cause nuisance, annoyance, inconvenience, or property damage to Survey.com, Clients, Stores or retailers; (k) selling or listing for sale products You were required to purchase to complete a Visit and for which You have been, or will be, reimbursed by Survey.com; (l) violating or failing to comply with Our policies, guidelines, or standards. Deactivation of Your Account may, in Our sole discretion and on a case-by-case basis, preclude or prevent You from creating and/or registering a new or replacement Account.
11.2 Deactivation by You. You may deactivate your Account at any time by doing so in the Application or by notifying Us that you wish to deactivate or delete your Account. written notice to Survey.com. The deactivation/deletion of your Account will be effective immediately and all active, pending, or in-progress Assignments and Claims will be removed from your Account. Any unrequested 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. Deactivation of Your Account may, in Our sole discretion and on a case-by-case basis, preclude or prevent You from creating and/or registering a new or replacement Account.
11.3 Suspension. Survey.com may suspend Your Account rather than Deactivate Your Account. When suspended, your Account may be restricted in various ways including, but not limited to: (a) You will be unable to Claim Assignments; (b) You may not be granted deadline extensions for your Assignments; (c) You will be ineligible for certain types of Projects or Assignments (at Survey.com’s sole discretion). When Your Account is on probation, further violations of this Agreement may result in Deactivation. Each suspension will be handled separately and at Survey.com’s sole discretion. This includes setting the terms by which Your Account can be returned to active status.
- Referral System and Affiliate Codes
Survey.com may, in its sole discretion, create referral and/or affiliate codes (“Referral Codes”) that may be used by Users to earn monetary or other rewards (“Referral Bonuses”) in exchange for enticing other qualifying individuals to use the Application. You agree that Referral Codes: (a) must be used for the intended purpose and in a lawful manner; (b) may be created, disabled, modified, or cancelled by Survey.com at any time, for any reason, without notice, and without any liability to Survey.com; (c) may only be used pursuant to the specific terms that Survey.com establishes for such Referral Codes; (d) may not be used in such a way as to violate Survey.com’s “one account per device” and “one account per user policy”; (e) may not be made available to the general public, (whether posted on forums, message boards, social media, reviews, or comment threads or distributed through paid or free advertising) unless expressly permitted by Survey.com. Survey.com reserves the right to modify, cancel, withhold or deduct credits, Referral Bonuses or other features or benefits obtained through the use of the referral system or Referral Codes by You or any other user, in the event that Survey.com determines that the use of the referral system or Referral Codes was in error, fraudulent, illegal, or otherwise in violation of this Agreement, or any other reason or for no reason at all. Survey.com reserves the right to change the terms of the use of the referral system, Referral Bonuses, and use of Referral Codes at any time and for any reason without liability to Survey.com. If Your Account gets Deactivated, Your Referral Code will cease being valid.
- Dispute Resolution & Procedures
13.1 Agreement to Mediate Disputes. Prior to commencing an arbitration pursuant to this Agreement, You and Survey.com shall be required to engage in a good faith mediation, the purpose of which shall be to resolve the Dispute(s) (as defined below) between the Parties or, if complete resolution is not achieved, narrow the issues to be arbitrated. The mediation shall occur with a licensed mediator agreed upon by the Parties, at a location closest to the city in which You last completed an Assignment from the Application. Alternatively, the Parties may agree upon an acceptable location for the mediation, including via webconference, but in any event, You and a duly authorized representative of Survey.com must be present and/or attend the mediation. Once a Party provides a written and signed mediation request to the other Party compliant with the Notices provision in this Agreement in Section 14, the applicable statute of limitation(s) for the claims described in the mediation request shall be tolled during the mediation proceedings. The Dispute(s) will proceed to arbitration only if the Parties are unable to reach a resolution in mediation. Survey.com shall bear the cost of mediation, unless otherwise agreed upon as part of the resolution of the claims via mediation. The Parties shall each bear their own attorneys’ fees and costs (if any) relating to any mediation, except that if the Dispute(s) are not resolved in mediation, and are submitted to arbitration, then the arbitrator shall award the prevailing party costs and attorneys’ fees, but only to the extent permitted or required by the applicable substantive law.
13.2 Agreement to Arbitrate Disputes.
(a) General; Governing Law. Arbitration is the process by which a neutral third party resolves a dispute through a binding decision. This Agreement, and in particular, this Agreement to Arbitrate Disputes provision (“Arbitration Provision”), is governed by the Federal Arbitration Act (“FAA”), to the fullest extent permitted by applicable law. State arbitration statutes will only apply to the extent they are consistent with, and not otherwise preempted by, the FAA. If any part or portion of this Arbitration Provision is held to be invalid, void, or unenforceable, the remainder of the Agreement will still be enforceable.
(b) Mandatory Binding Arbitration of Disputes. To the maximum extent permissible by law, except for the claims expressly excluded by this Arbitration Provision, You and Survey.com, or any of its parents, subsidiaries, affiliates, agree that any and all disputes, claims, or controversies (“Disputes”) that each could bring against one another in a court arising out of, or related to, Your acceptance of the terms of this Agreement, including but not limited to the Disputes described in subsection 13.2(b)(i) below, are, and shall be subject to arbitration pursuant to this Agreement and Arbitration Provision, and shall be adjudicated exclusively by binding arbitration, rather than by a judge or jury in court.
(i) Consistent with the terms of this Arbitration Provision, and Section 13.2(b) above, this Agreement and Arbitration Provision includes the Parties’ express agreement to submit any and all past, present, or future Disputes to binding arbitration, including without limitation: (i) any and all Disputes arising from, under, or related to this Agreement, including any dispute concerning whether this Agreement or any aspect thereof is valid or enforceable, as well as any dispute regarding whether a Dispute is subject to arbitration pursuant to this Arbitration Provision; (ii) any past, current, or future controversy, dispute, or claim relating to Your association to Survey.com or use of the Application that could otherwise be raised in court that (1) Survey.com has against You, (2) You have against Survey.com, or (3) You have against Survey.com’s current or former shareholders, owners, partners, officers, directors, members, employees, vendors, clients, customers, agents, insurers, attorneys, parents, subsidiaries, affiliated companies, predecessors, successors, assigns, or any person or entity alleged to be a joint employer with Survey.com (the persons and entities identified in subpart (3) of the preceding sentence are intended third party beneficiaries of this Agreement); (iii) Disputes for, or in any way relating to, compensation, wages, misappropriation of trade secrets or unfair competition; (iv) Disputes for, or in any way relating to any intentional, negligent, or reckless act, tort, fraud or misrepresentation; (v) Disputes for unlawful retaliation, discrimination and/or harassment of any kind, including those arising under federal, state, or local laws or regulations or statutes regarding wage and hour laws and/or prohibiting employment discrimination (such as, without limitation, race, sex, national origin, ancestry, age, disability, religion, medical condition, marital status, sexual orientation, military status, public policy, or genetic information), except as otherwise excluded in Section 13.2(b)(ii); (vi) Disputes regarding violation(s) of any public policy, including but not limited to, whistle blower or Business and Professions Code claims; (vii) Disputes relating to any alleged or actual agreement, contract, or covenant (oral, written, or implied); (viii) individual Disputes under state private attorneys general laws (e.g., California Private Attorneys General Act, California Labor Code §§ 2698, et seq.); or, (ix) Disputes relating to any claim based on any other federal, state, or local law, ordinance or regulation, a claim based on public policy, contract, tort, or common law, as well as any claim for costs, fees, or other expenses or relief, including personal, emotional, physical or economic injuries, or attorneys’ fees. All Disputes must be timely and not time-barred by law; any Disputes that could be raised before a court must be raised in a timely manner at the time of arbitration and the arbitrator shall apply the law regarding the applicable statute of limitations of any such claims accordingly. Notwithstanding the above, if an arbitration award would be rendered ineffectual without provisional relief including, but not limited to, preliminary injunctions or temporary restraining orders, either party may request such relief from a court of competent jurisdiction to preserve the status quo pending arbitration.
(c) Disputes not subject to arbitration under this Agreement are defined as “Excluded Disputes,” which are the following: (i) representative Disputes for public injunctive relief under California Business and Professions Code section 17203, but only to the extent that federal law, after application of the Federal Arbitration Act (“FAA”) and FAA preemption principles, prohibits enforcement of the representative action waiver (discussed in Section 13.3 below); and (ii) Disputes which, after application of the FAA and FAA preemption principles, are not subject to arbitration, mandatory arbitration agreements, or pre-dispute arbitration agreements, including but not limited to claims covered by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C. § 402(a)).
(d) Further, this Arbitration Provision does not limit any federal, state, or local government or administrative agency’s jurisdiction nor does it prohibit the filing of an administrative charge or complaint with any such agency. Also, nothing in this Agreement prevents You from reporting good faith allegations of unlawful business practices to appropriate federal, state or local agencies; reporting any good faith allegation of criminal conduct to any appropriate federal, state, or local official; participating in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws; making any truthful statements or disclosures required by law, regulation, or legal process; or requesting or receiving confidential legal advice.
(e) You and Survey.com agree to be mutually obligated to arbitrate all Disputes as set forth above. No remedies that otherwise might be available to You or Survey.com in a court of law, however, will be forfeited by virtue of this Arbitration Provision or by Your agreement to use the Application and be bound by this Agreement.
(f) You acknowledge that you have been given the opportunity to consult legal counsel concerning the decision to execute this Agreement and the Arbitration Provision herein.
13.3 Waiver of Multi-Plaintiff, Multi-Claimant, Class, Collective, Representative Actions (“Class Waiver”). To the maximum extent permitted by the FAA, Disputes must be brought, heard, and adjudicated on an individual basis only, and there is no right or authority for any Covered Dispute to be brought, heard, or adjudicated as a multi-plaintiff, multi-claimant, class, collective, or representative action, or with any other person or entity as a member in any purported multi-plaintiff, multi-claimant, class, collective, representative proceeding. No arbitrator or court has authority to consolidate Covered Disputes or to allow Survey.com or You to proceed on a multi-plaintiff, multi-claimant, class, collective, or representative basis. Should such a Covered Dispute be initiated on a multi-claimant, class, collective, or representative basis in arbitration, the arbitrator shall summarily reject it as beyond the scope of this Agreement. Excluded Disputes (as defined in Section 13.2(c) and (d) above) are not subject to the Class Waiver.
Any Disputes concerning the applicability or validity of the Class Waiver shall be decided by a court of competent jurisdiction, not by the arbitrator. In the event that a court determines that the Class Waiver, or any portion thereof, is determined to be unenforceable with respect to any Dispute, any remaining portion of the Class Waiver that is enforceable and requires the Dispute to be initiated and adjudicated in arbitration on an individual basis only shall be enforced. In the event that a court determines the Class Waiver unenforceable in its entirety with respect to any Dispute, the Class Waiver shall not apply to that Dispute and that Dispute must be initiated and adjudicated in court.
13.4 Jury Waiver. You and Survey.com also agree by signing this Agreement to each waive the right to a jury trial with regard to all Disputes concerning Your relationship with one another or arising under or out of this Agreement consistent with the terms set forth in this Arbitration Provision.
13.6 Authority to Determine Arbitrability. Except as provided above, or as otherwise provided by federal law, the arbitrator shall have the exclusive authority to resolve any dispute relating to the arbitrability of any individual Dispute or the enforceability or formation of this Agreement (including all defenses to contract enforcement such as, for example, waiver of the right to compel arbitration). Enforcement of this Arbitration Provision may not be precluded or delayed on the grounds that (1) a party to this Agreement is also a party to a pending court action or special proceeding with a third party arising out of the same transaction or series of related transactions; or (2) a party to this Agreement asserts arbitrable and non-arbitrable Disputes.
13.7 Severability. If an arbitrator finds any provision of this Agreement unenforceable, a court or arbitrator shall interpret or modify this Agreement, to the extent necessary, for it to be enforceable, subject to the provisions of this section. This Agreement and the Arbitration Provision shall be self-amending; meaning if by law or common law a provision is deemed unlawful or unenforceable, that provision and the Agreement automatically, immediately and retroactively shall be amended, modified, and/or altered to be enforceable.
13.8 The Arbitration Process. The arbitration shall be arbitrated by a single arbitrator in accordance with, and by binding arbitration pursuant to the Employment Arbitration Rules (“Rules”) of the American Arbitration Association (hereinafter “AAA”), except where otherwise specified herein. You may obtain a copy of the AAA Rules and instructions on submitting a demand for arbitration before signing this Agreement at www.adr.org, or by contacting the AAA directly (toll-free 800-778-7879). Survey.com shall pay all arbitration initiation fees and costs that would not be incurred in a court proceeding.
- The arbitrator shall apply the Federal Rules of Civil Procedure, except for Rule 23, and the Federal Rules of Evidence as interpreted in the jurisdiction in which the arbitration is held. If a summary judgment motion is made by either party, the arbitrator must render a written and detailed opinion on that motion within sixty (60) calendar days of submission of all supporting and opposition papers. Any arbitration hearing shall be transcribed by a court reporter. The arbitrator shall provide the Parties with a written and detailed reasoned decision and/or award following the conclusion of an arbitration hearing. The arbitrator’s decision will be final and binding on all Parties and will be subject to judicial review as permitted pursuant to Section 10 of the Federal Arbitration Act. If a court determines that the award is not completely enforceable, it shall be enforced and binding on both Parties to the maximum extent permitted by law.
- Any Dispute for arbitration will be timely only if brought within the time in which an administrative charge or complaint could have been filed if the Dispute is one which could be filed with an administrative agency. If the arbitration Dispute raises an issue which could not have been filed with an administrative agency, then the Dispute must be filed within the time set by the appropriate statute of limitations.
(c) Discovery shall be permitted in the arbitration that would otherwise be available in court, including but not limited to depositions, interrogatories, requests for documents and request for admissions upon the limitations set forth in the Federal Rules of Civil Procedure. The arbitrator shall have the authority to limit the discovery but must allow discovery sufficient for the Parties to adequately arbitrate their Disputes.
(d) The arbitrator shall issue a written award which shall be signed by the arbitrator and shall provide the essential findings and conclusions on which the award is based.
(e) The arbitrator shall have the power to award any type of legal or equitable relief available in a court of competent jurisdiction including, but not limited to, including with respect to the award of any remedy or relief on an individual basis and any award of costs and attorneys’ fees to the prevailing party to the extent such damages are available under law and otherwise consistent with the terms of this Agreement. Otherwise, each party shall bear their own attorney’s fees and costs. The arbitrator also may award monetary and non-monetary sanctions or other relief against a party or a party’s attorney(s) for violation of this Agreement, the AAA Rules, an arbitrator’s order, the filing of frivolous Disputes, and/or violation of Federal Rule of Civil Procedure 11. Consistent with the terms set forth above, the arbitrator has no power to consolidate claims or adjudicate a collective/class and/or representative action.
(f) Because any arbitral award may be entered as a judgment or order in any court of competent jurisdiction, any relief or recovery to which any party may be entitled upon any Dispute shall be limited to that awarded by the arbitrator. The arbitration award shall be final and binding upon the parties. Any court of competent jurisdiction may enter judgment upon the award, either by (i) confirming the award or (ii) vacating, modifying, or correcting the award on any ground permitted by applicable law.
(g) Either Party may commence the arbitration process by filing a written demand for arbitration with AAA, and sending a copy by personal delivery or certified mail to the other party. For Survey.com, the demand must be sent to its registered agent, and as to the User, the demand must be sent to the address last provided by User to Survey.com.
(h) The arbitrator shall be selected pursuant to AAA rules unless you and Survey.com agree otherwise and except as provided for in this Agreement. Nothing in this paragraph shall prohibit or limit any party from seeking injunctive relief in lieu of or in addition to arbitration at any time directly from a court of competent jurisdiction.
(i) The arbitrator’s authority shall be limited to deciding the case submitted for arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations.
(j) The arbitrator shall apply the substantive law, including the conflicts of law, of the state in which the User last completed or accepted an Assignment or Project. For Disputes arising under or governed by federal law, the arbitrator shall follow the substantive law as set forth by the United States Supreme Court. If there is no controlling United States Supreme Court authority, the arbitrator shall follow the substantive law that would be applied by the United States Court of Appeals or the United States District Court for the district in which User last performed work for Survey.com.
(k) Neither the Parties nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of all Parties to the arbitration.
(l) The Company has access to legal representation. You may consult with a lawyer or any other adviser of your choice. You are not required, however, to hire a lawyer or advisor to participate in arbitration.
(m) To the extent any of the provisions herein conflict with any AAA rules, the express provisions of this Agreement and the Arbitration Provision herein shall prevail.
13.8 Consideration. In addition to the consideration being a mutual agreement to arbitrate, Survey.com agrees to reimburse You for the administrative filing fees the AAA may impose on You to initiate arbitration against Survey.com. As further consideration, Survey.com agrees to pay the fees charged by the arbitrator for their services related to arbitration between You and Survey.com. The Parties agree that the consideration set forth in this paragraph is wholly adequate to support this Agreement.
13.9 Final Agreement to Arbitrate; Severability. Except as stated in paragraph 13.4 above, this Arbitration Provision in Section 13 sets forth the final agreement of the parties and supersedes all prior negotiations, representations or agreements, whether written or oral, pertaining to arbitration of Disputes, Class Waivers, and waiver of jury trials. This Agreement and Arbitration Provision shall be binding upon and inure to the benefit of any successor or assignee of Survey.com and as to your heirs, executors and administrators
13.10 Legal Notice. By signing this Agreement or by using the Application in any manner, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any Disputes between You and Survey.com. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE and/or REPRESENTATIVE 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.
- General Provisions
14.1 Governing Law. Subject to, and consistent with, the provisions of Arbitration Provisions set forth in Section 13, this Agreement is generally 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, except when necessary to retain the validity, legality, and enforceability of this Agreement under applicable federal, state, or local law.
14.2 Severability. Subject to, and consistent with, the provisions of Arbitration Provisions set forth in Section 13, if any part, portion, or provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other part, portion, or provisions of this Agreement will be unimpaired and the invalid or unenforceable part, portion or provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14.3 No Assignment; Survivability. 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. This Agreement, including the Arbitration Provisions set forth in Section 13, shall be binding upon and inure to the benefit of any successor or assignee of Survey.com and as to Your heirs, executors, and administrators.
14.4 Notices. Survey.com may give any notice required by this Agreement by means of a general notice on the Application, 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 twenty-four (24) hours after sending (if sent by email). You may give notice to Survey.com, addressed to the attention of its registered agent. 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: 1 Beacon Street, Boston, MA 02108.
14.5 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.
14.6 Waiver by Survey.com. Any waiver or failure to enforce any provision of this Agreement by Survey.com will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.7 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. The terms of any Offers, Projects, or Assignments, are deemed to be part of this Agreement (however, in the event of a discrepancy between the terms of this Agreement and any writing, document, Project, Program, or Assignment, the terms of this Agreement shall control).
14.8 Feedback or Questions. In the event that You provide Survey.com with any feedback or questions regarding the Application or the Services, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the Service or the Survey.com Mobile Application, 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.
14.9 Users in the City of Seattle. Users who perform services pursuant to this Agreement in whole or part in the City of Seattle, and who otherwise constitute an “independent contractor” as that term is defined in Chapter 14.34 of the Seattle Municipal Code (SMC) are entitled to the rights set forth in the attached “Notice of Rights.”
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(Applicable to Users who are an “independent contractor” as that term is defined in Chapter 14.34 of the Seattle Municipal Code (SMC))
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