1.

SERVICES AND SUPPORT

1.1

Subject to the terms of this Agreement, IntelliSurvey shall perform the Services pursuant to the specifications set forth in each Statement of Work, “SOW”, in a timely, diligent, and accurate manner, and with the highest professional standards of vendors who perform comparable services within or for the market research industry

1.2

IntelliSurvey will comply with all relevant policies and codes of conduct of the Customer. IntelliSurvey shall provide the Services with at least the same degree of quality and timeliness customarily exercised by Vendor in connection with its own business operations. 

2.

RESTRICTIONS AND RESPONSIBILITIES

2.1

Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by IntelliSurvey or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

2.2

Customer represents, covenants, and warrants that Customer will use the Services only in compliance with IntelliSurvey’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. The Customer hereby agrees to indemnify and hold harmless IntelliSurvey against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although IntelliSurvey has no obligation to monitor Customer’s use of the Services, IntelliSurvey may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.3

Customer shall indemnify, defend and hold harmless the IntelliSurvey, contractors and third-party suppliers, and each of its and their respective officers, directors, employees, agents, permitted successors, and permitted assigns from and against, all losses suffered or incurred by it or them.

3.

PAYMENT OF FEES

3.1

All invoices are due within thirty (30) days of the invoice date. Customer agrees to reimburse IntelliSurvey for all reasonable out-of-pocket expenses as set forth in the relevant Statement of Work that are necessarily incurred by IntelliSurvey in its performance of the Services or creation of Deliverables. 


3.2

All amounts outstanding beyond thirty (30) days of the invoice date will be subject to a finance charge of 1.5% per month. Customer agrees to pay all taxes imposed by any jurisdiction or governmental entity in connection with the transactions contemplated by this Agreement, whether sales, use, excise or otherwise, except those on IntelliSurvey’s income and personal property.

4.

TERM AND TERMINATION

4.1

Subject to earlier termination as provided below, this Agreement is for each SOW.

4.2

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, all sections of this Agreement which can by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

5.

CONFIDENTIALITY

5.1

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of IntelliSurvey includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes survey instruments, inputs (such as images and algorithms), and other non-public information or documents provided by Customer to IntelliSurvey to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

5.2

Customer shall own all right, title and interest in and to the Customer Data. IntelliSurvey shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, and (c) all intellectual property rights related to any of the foregoing.

6.

INTELLECTUAL PROPERTY

6.1

Ownership. As used in this Agreement, “Deliverables” shall mean all work product prepared and delivered by IntelliSurvey during the course of Services to the Customer pursuant to this Agreement. Work Product as defined herein expressly excludes IntelliSurvey IP, including the IntelliSurvey Platform. The Customer shall own all right, title and interest, including the copyright, in the Deliverables and IntelliSurvey shall assign all right, title and interest in and to such rights, including any and all copyrights of the Deliverables to Customer.

6.2

IntelliSurvey IP. Customer agrees that the IntelliSurvey Platform and all improvements thereto, and the resources, business processes, software, technology, and research methodologies used by IntelliSurvey to render the Services are and shall be solely owned by IntelliSurvey (the “IntelliSurvey IP”). The IntelliSurvey IP constitutes IntelliSurvey’s confidential, proprietary and trade secret information. IntelliSurvey hereby grants to Customer a non-exclusive, nontransferable, non-sublicensable, right, to access and use the IntelliSurvey IP during the time specified in an applicable SOW providing for such access, provided that such access and use is (a) only for Customer’s internal business purposes, including without limitation to support the business decisions of Customer, and (b) in accordance with the applicable end-user documentation that IntelliSurvey provides to end-user customers for use of the IntelliSurvey Platform. Customer agrees that it shall not acquire any interest in the IntelliSurvey IP arising out of the transactions contemplated by this Agreement except as expressly provided herein.

7.

MUTUAL WARRANTY AND DISCLAIMER

IntelliSurvey shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by IntelliSurvey or by third-party providers, or because of other causes beyond IntelliSurvey’s reasonable control, but IntelliSurvey shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, INTELLISURVEY does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND INTELLISURVEY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8.

MUTUAL INDEMNIFICATION

IntelliSurvey shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided IntelliSurvey is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; IntelliSurvey will not be responsible for any settlement it does not approve in writing.

9.

LIMITATION OF LIABILITY

IN NO EVENT SHALL INTELLISURVEY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER DAMAGES RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOST PROFITS, COSTS OF RECOVERY OR ANY OTHER DAMAGES), HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE, INDEMNIFICATION OR OTHERWISE, AND WHETHER OR NOT INTELLISURVEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INTELLISURVEY’S LIABILITY HEREUNDER IS LIMITED TO THE AMOUNT OF FEES PAID TO INTELLISURVEY UNDER THE APPLICABLE STATEMENT OF WORK DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACTION THAT GAVE RISE TO THE LIABILITY.

10.

MISCELLANEOUS

10.1

Relationship: No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind IntelliSurvey in any respect whatsoever.

10.2

Force Majeure: than with respect to Customer’s payment obligations hereunder, neither party shall be deemed in default of the Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted or prevented by reason of any act of God, fire, natural disaster, act of government, strikes or labor disputes, inability to provide raw materials, power or supplies or any other similar act or condition beyond the reasonable control of such party.

10.3

Insurance: During the term of this Agreement, IntelliSurvey will carry, at its sole cost and expense and with a commercial insurance carrier, insurance with coverage(s) and limits that are reasonable and customary within Customer’s and IntelliSurvey’s respective industry, including Cyber Liability insurance, for the obligations and undertakings made in connection with this Agreement.

10.4

Notices: All notices under this Agreement will be in writing and will be deemed to have been duly given when received.

10.5

Severability: If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

10.6

Governing Law and Jurisdiction: This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.

10.7

Entire Agreement: This Agreement is not assignable, transferable or sublicensable by Customer except with IntelliSurvey’s prior written consent. IntelliSurvey may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

Last updated: 21-Dec-2023