Master Services Agreement

Last updated: March 1, 2019

 

SERVICES TERMS

 

THESE SERVICES TERMS (“AGREEMENT”) GOVERN TAPRESEARCH’S PERFORMANCE OF SERVICES, UNLESS YOU AND TAPRESEARCH ARE PARTIES TO A SEPARATE WRITTEN AGREEMENT FOR THE PERFORMANCE OF SERVICES. YOU MAY NOT ACCEPT OR EXECUTE THIS AGREEMENT UNLESS (A) YOU ACT FOR A BUSINESS OR OTHER ORGANIZATION; (B) YOU ACCEPT THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION; AND (C) YOU ARE AUTHORIZED TO ACT ON BEHALF OF YOUR ORGANIZATION. YOU ACCEPT THIS AGREEMENT WITH TAPRESEARCH AS DESCRIBED IN SECTION 1.2 BELOW, AND THE DATE OF SUCH ACCEPTANCE SHALL BE THE “EFFECTIVE DATE” OF THIS AGREEMENT. TAPRESEARCH WILL NOT BE BOUND BY ADDITIONAL OR ALTERNATIVE TERMS OR CONDITIONS ADDED OR DELETED BY CUSTOMER, PRINTED OR OTHERWISE, ON ANY PURCHASE ORDER, ORDER FORM, STATEMENT OF WORK, INSTRUCTIONS OR SIMILAR DOCUMENT. This Agreement is between the customer named in the Ordering Document (“You” or “Your” or “Customer”) and TapResearch Inc. (each, a “party,” collectively, the “parties”) and constitutes the entire understanding related to the subject matter. 

 

1.  SCOPE

 

1.1        Description of Services

 

1.2         Acceptance of Ordering Document.  An Ordering Document is deemed to have been accepted and is binding on both parties on the earlier of when Customer: (a) executes and returns an Ordering Document to TapResearch; (b) acknowledges acceptance of the Ordering Document by e-mail or any other commercially reasonable electronic means, by a person duly authorized by Customer to execute the Ordering Document; (c) work has been started by TapResearch at the direction of Customer; or (d) Customer has directed TapResearch to place orders with its subcontractors in order to satisfy the Ordering Document.

 

2.  FEES; PAYMENTS; TAXES

 

2.1        Fees. Within ten (10) days following Survey Completion, Customer will: (a) provide a written report detailing the surveys accepted and the surveys rejected by Customer with respect to the Services under such Ordering Document, explaining in sufficient detail those surveys rejected; and; (b) remit full payment to TapResearch with respect to the fees charged for the Services, in accordance with TapResearch’s then-current rates or as otherwise agreed upon in writing by Customer and TapResearch. Notwithstanding the foregoing: (1) Customer may only reject a survey that it believes in good faith to contain substantially poor respondent data or fraudulent data; (2) Customer must remit full payment to TapResearch with respect to the fees charged for all surveys that Customer is not entitled to reject hereunder; and (3) TapResearch reserves the right, at any time, to verify Customer’s compliance with its obligation to remit full payment with respect to the Services performed, including without limitation the validity of the accepted and/or rejected surveys relating to such Services. Customer understands that the monetary amounts or limits stated in the Ordering Document may be estimates for Customer’s budgeting and TapResearch’s resource scheduling purposes and may not necessarily be the actual amount of fees owed by Customer with respect to the Services rendered. Except as expressly set forth in this Agreement, the Services are non-cancelable and all fees with respect to the Services are non-refundable. Customer is not entitled to withhold or offset any amounts with respect to the Services performed by TapResearch.

 

2.2         Payments.  All fees hereunder are due and payable to TapResearch by Customer thirty (30) days from date of invoice, unless otherwise agreed in an Ordering Document.   Any payments due to TapResearch which remain unpaid after the due date will be considered delinquent and will accrue interest on such sums on a daily basis from the date when payment became due until the date on which payment is received, which interest will be equal to the greater of (a) the maximum legally permissible interest rate; or (b) an interest rate of five percent (5%) greater than the then-current rate published by the San Francisco, CA office of the Federal Reserve. In the event of late payments, non-payments, chargebacks or bad debts, TapResearch reserves the right to invoice Customer for any associated fees, costs or expenses incurred by TapResearch, which are in addition to the fees for the Services.

 

2.3        Taxes.  All amounts payable pursuant to this Agreement are exclusive of any taxes, duties, and similar charges, including without limitation sales, usage, excise and value added taxes, VAT and GST (“Taxes”), all of which shall be the sole responsibility of Customer, provided that Customer is not liable for those taxes attributed solely to TapResearch’s net income. Customer will not withhold Taxes from any amounts payable to TapResearch, except as may be required under applicable law. If such withholding is required, then Customer will promptly furnish TapResearch with the official receipt of payment of such Taxes to the appropriate taxing authority. If Taxes are withheld and TapResearch does not receive the appropriate tax certificate within thirty (30) days after the payment due date, Customer will immediately remit full payment to TapResearch for the outstanding amount, plus interest calculated from the payment due date to the date of payment in accordance with this Section 2. Customer will indemnify TapResearch for all costs, losses, liabilities and expenses, including penalties, arising from its failure to pay Taxes.

 

3.  LICENSE; OWNERSHIP; PROHIBITED USES OF THE SERVICES

 

3.1        License. 

 

3.2        Ownership. 

 

3.3        Prohibited Uses

 

4.  CONFIDENTIALITY AND COMPLIANCE OBLIGATIONS

 

4.1        “ Confidential Information ” shall mean any information designated in writing, or identified orally at time of disclosure and confirmed as such in writing within thirty (30) days of the oral disclosure, by the disclosing party as “confidential” or “proprietary.”  TapResearch’s Confidential Information shall include without limitation the TapResearch Materials, and all code, inventions, know-how, trade secrets, strategies, business, technical and financial plans and any other information of TapResearch irrespective of whether any confidentiality marking is present. Customer understands and agrees that it will not provide TapResearch with any personal data or otherwise give TapResearch access to any personal data, unless Customer first identifies and notifies TapResearch of such data, and TapResearch has agreed in writing to accept such data from Customer.

 

4.2        Non-Disclosure Obligations.  

 

4.3        Exclusions. 

 

4.4        Publicity. 

 

4.5        Compliance

 

4.6        Personal Data Elements within Survey Data

 

4.7        Personal Data Elements within TapResearch Materials Schedule 1

 

5.  WARRANTIES

 

5.1         Warranties.   Without limiting any other representation, warranty or covenant herein, each party hereby represents and warrants to the other that: (a) it has the full right, power and authority to enter into this Agreement; and (b) this Agreement is a valid and binding obligation upon such party. Additionally, Customer hereby warrants and represents that: (1) Customer has obtained and shall maintain all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder (including any necessary rights or consents from third parties to allow TapResearch to make the Survey Specs available to respondents); (2) the Survey Specs do not infringe or otherwise violate any third party’s intellectual property or proprietary rights; and (3) Customer will comply with all applicable laws, rules and regulations in the performance of this Agreement.

 

5.2         Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TAPRESEARCH MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY MATTER, INCLUDING THE SERVICES AND SURVEY MATERIALS, WHICH ARE OFFERED SOLELY ON AN “AS-IS” AND “AS AVAILABLE” BASIS. ANY USE OF THE SERVICES OR SURVEY MATERIALS IS AT CUSTOMER’S SOLE RISK. TAPRESEARCH EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT THE SERVICES, SURVEY MATERIALS, OR THE USE OF EITHER OF THE FOREGOING WILL BE OF SATISFACTORY QUALITY, OR UNINTERRUPTED OR ERROR-FREE, OR WILL NECESSARILY YIELD CUSTOMER A CERTAIN RESULT OR OTHERWISE BE OF ANY USE OR VALUE TO CUSTOMER. THE REMEDIES SET FORTH HEREUNDER WILL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO THE SERVICES AND SURVEY MATERIALS.

 

6.  INDEMNIFICATION

 

6.1        Customer Indemnification.  

 

7.  LIMITATION OF LIABILITY

 

UNDER NO CIRCUMSTANCES WILL TAPRESEARCH OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF TAPRESEARCH OR A TAPRESEARCH AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

IN NO EVENT WILL TAPRESEARCH’S OR ITS AFFILIATES’ MAXIMUM AGGREGATE LIABILITY TO CUSTOMER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO TAPRESEARCH HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM OR $500, WHICHEVER IS LESS.

 

THE PARTIES AGREE THAT THE FOREGOING PROVISIONS FAIRLY ALLOCATE THE PARTIES’ RISKS AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN, WITHOUT WHICH THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.

 

8.  CHANGES

 

8.1         Change Orders.  If the relevant requirement(s), project plan(s), schedule, scope, specification(s), design(s), software, hardware product(s), or related system environment(s) or architecture in connection with an Ordering Document are changed by Customer or any other person, TapResearch will not be responsible for any Services arising from the change unless Customer and TapResearch specifically consent to the change, scheduling, and additional charges, if any, in a written document signed by both parties (each a “Change Order”).

 

9.  TERM AND TERMINATION

 

9.1        Term. This Agreement will commence on the Effective Date and will remain in effect until terminated in accordance with Section 9.2 (the “Term”).

 

9.2         Termination.  TapResearch may terminate this Agreement at any time for any or no reason by providing written notice to Customer. Additionally, in the event of a material breach by one party, the non-breaching party may terminate this Agreement and/or the affected Ordering Document if the breaching party fails to cure the material breach within thirty (30) days of the non-breaching party’s notice of such material breach. Notwithstanding the foregoing, TapResearch may terminate this Agreement and/or all pending Ordering Documents if a breach of Sections 3.3, 4.5, or 5.1 occurs.

 

9.3         Effect of Termination.  Unless TapResearch notifies Customer in writing otherwise, any and all pending Ordering Documents will terminate upon any termination of this Agreement. Upon any termination of this Agreement: (a) Customer will remit to TapResearch all payments owed up to the effective date of termination; and (b) any and all license rights and other privileges granted to Customer herein shall terminate immediately. Provisions concerning the parties’ rights and obligations which by the content of the provision operate after termination or which are necessary to enforce any right shall survive termination of this Agreement. Notwithstanding the foregoing, Sections 2, 3.2, 4 through 7, 9.3 and 10 shall survive any termination of this Agreement.

 

10.  GENERAL

 

10.1      Governing Law; Venue .  Any

 

10.2      Collection Expenses and Legal Fees .  Customer will reimburse TapResearch for all costs incurred in collecting delinquent payments of money owed under this Agreement, including but not limited to reasonable legal fees.  In addition to the foregoing, the prevailing party in any litigation with respect to any claim hereunder will be entitled as a matter of right and not within the discretion of the arbitrator or judicial officer, to recover its costs and expenses including, without limitation, reasonable attorneys’ and witness’ fees.

 

10.3       No Waiver.  Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.

 

10.4       Force Majeure .  If the performance of either party is delayed or prevented at any time due to circumstances beyond its control, including, without limitation, those resulting from labor disputes, fire, floods, riots, civil disturbances, weather conditions, control exercised by a governmental entity, unavoidable casualties or acts of God or a public enemy, then the performance will be excused until such condition no longer exists, except that this Section 10.4 does not excuse either party from any of its payment obligations, nor does it excuse Customer from its obligations under Section 4.

 

10.5      Notices.  All notices or questions concerning this Agreement should be directed to TapResearch as follows:

 

TapResearch Inc.
Attn: Legal
1010 El Camino Real, Suite 300
Menlo Park, CA 94025
U.S.A.

All notices or questions concerning this Agreement should be directed to Customer at the address set forth in the Ordering Document(s). Notice is effective only upon receipt by the receiving party.

 

10.6       Entire Agreement.   This Agreement and all Ordering Documents set forth the entire agreement between TapResearch and Customer, and supersedes any and all prior or contemporaneous communications, negotiations, representations, commitments, writings and agreements, whether oral or written, with respect to the subject matter contained herein. Any different or additional terms on Customer's purchase order or similar document, whether dated before or after the date of this Agreement, are expressly rejected. This Agreement may only be altered or modified by written instrument duly executed by both parties.

 

10.7      Records and Inspections.  Customer will maintain all data, records, books, logs, manuals, policies, processes, controls and all other information relating to Customer’s performance (collectively, “Records”). TapResearch reserves the right to request, inspect and/or audit the Records at any time upon advance notice (email acceptable) to Customer. If any underpayment is discovered, Customer will refund to TapResearch the amount of the underpayment. Customer will also reimburse TapResearch for all reasonable expenses incurred in discovering the underpayment if: (a) the underpayment is five percent (5%) or more of the fees payable by Customer with respect to the applicable Services; or (b) it is discovered that Customer has materially failed to maintain accurate records in accordance with this Section 10.7.

 

10.8       Relationship of the Parties.  The parties are independent contractors hereunder. Nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties.

 

10.9  Severability.  If a provision of this Agreement is held invalid under any applicable law, such invalid provision shall be deemed modified to the extent necessary to make it valid and enforceable to reflect the original intent of the parties, or, if such provision cannot be so modified, it shall be removed from this Agreement without affecting any other provision of this Agreement.

 

Last Modified : March 1, 2019.

Copyright 2019, TapResearch Inc.

All Rights Reserved.

 


 

SCHEDULE 1

DATA PROCESSING AGREEMENT

 

This Data Processing Agreement (this “DPA”) is entered into by and between the customer for whom TapResearch is performing Services (“Customer”) and TapResearch Inc (“TapResearch”) and shall be effective as of the Effective Date of the Agreement.

 

1.               DEFINITIONS

1.1.           “ Data Protection Laws ” means the General Data Protection Regulation (EU) 2016/679 as implemented in any applicable territory or any equivalent data protection laws in  any other applicable  territory, in each case as amended, replaced or supplemented and in force from time to time, and all subordinate legislation made under them, together with any codes of practice or other guidance issued by the data protection regulator in the relevant applicable territory;

1.2.           “ Personal Data ” means any information relating to an identified or identifiable natural person within the TapResearch Materials;

1.3.           “Personnel” means all officers, directors and employees (including of its affiliates), independent contractors or service providers of either Customer or TapResearch;

1.4.           “Process(ing)” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; and

1.5.           “Services” means any services set out in any agreement between TapResearch and Customer.

 

2.               APPOINTMENT

2.1.           If, at any time, TapResearch requests that Customer Process Personal Data on behalf of TapResearch: (a) the parties agree that for the purposes of the Data Protection Laws, TapResearch is the data controller and TapResearch is the data processor of any Personal Data; and (b) Customer shall comply with the provisions of this DPA.

2.2.           Customer and its Personnel shall process the Personal Data only to the extent, and in such a manner, as is necessary for receipt of the Services and in accordance with TapResearch’s written instructions from time to time; Customer shall not Process Personal Data for any other purpose.

2.3.           Customer shall immediately notify TapResearch if, in its opinion, any instruction made pursuant to this DPAinfringes

2.4.           Upon Customer’s request, Customer shall, and shall procure that its Personnel and any sub-processors shall, immediately cease using the Personal Data and promptly deliver in a manner acceptable to TapResearch all documents and materials containing Personal Data or any other data or information disclosed or supplied by TapResearch under or in connection with this DPA or, at TapResearch’s written request and option, destroy them and provide evidence of their destruction to TapResearch unless applicable Data Protection Laws requires the storage of Personal Data.

2.5.           Notwithstanding anything to the contrary, the obligations in this DPA will remain in effect until deletion of all Personal Data by Customer as described in this DPA.

3.               PERSONNEL

3.1.           Customer shall ensure that any Personnel with access to Personal Data do not process Personal Data except in accordance with this DPA and agree in writing to comply with the provisions set out in this DPA.

3.2.           Customer shall take all such steps as are necessary to ensure the reliability of Personnel who have access to Personal Data.

3.3.           Customer shall ensure that access to the Personal Data is limited to: (a) Personnel who need access for the purpose of exercising Customer’s rights or performing Customer’s obligations under this DPA; and (b) in the case of access by any Personnel, such part or parts of the Personal Data as is strictly necessary for performance of such Personnel's duties.

3.4.           Customer shall ensure that Personnel: (a) are informed of and maintain the confidential nature of the Personal Data; (b) have undertaken training in the Data Protection Laws relating to handling of Personal Data; and (c) are aware of TapResearch’s duties and obligations under the Data Protection Laws and this DPA.

4.               SUB-PROCESSORS

4.1.           Customer shall not appoint a sub-processor without the prior written consent of TapResearch.

4.2.           Customer shall ensure that each of its sub-processors are: (a) aware of this DPA; and (b) bound by contractual obligations with respect to the Personal Data which are the same as, or no lesser than, those contained in this DPA.

4.3.           Customer shall be liable for the acts and omissions of its sub-processors to the same extent that Customer would be if performing the Processing directly under this DPA.

5.               DATA SUBJECT RIGHTS

5.1.           To the extent that TapResearch, in its provision of the Services, does not have the ability to report the content of, correct, amend, block, or delete Personal Data as required by the Data Protection Laws, Customer shall, and shall ensure that its sub-processors shall, promptly comply within 5 calendar days with a request from TapResearch to facilitate such actions at no additional cost to TapResearch.

5.2.           If Customer receives a complaint, notice or communication which relates directly or indirectly to the Processing of Personal Data, it shall immediately, and in any event within 5 calendar days, notify TapResearch and shall provide full co-operation and assistance to enable TapResearch to address the request. TapResearch shall not respond to any such compliant, notice or communication without the prior written consent of TapResearch.

5.3.           If TapResearch receives any complaint, notice or communication from a third party which relates directly or indirectly to the Processing of Personal Data by Customer and/or it sub-processors, Customer shall, at its expense, provide, or shall procure the provision of, full co-operation and assistance to TapResearch in relation to any such request.

6.               SECURITY

6.1.           Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of data subjects, Customer shall implement appropriate technical and organizational measures and perform regular security backups of Personal Data to ensure a level of security and integrity appropriate to the risk of unauthorized, accidental or unlawful Processing, access, loss, disclosure or destruction of Personal Data (a “ Security Breach ”).

6.2.           Customer shall promptly and in any event within 24 hours inform TapResearch of any actual or suspected Security Breach and any breach of its security obligations contained in paragraph 6.1.

6.3.           To the extent that a Security Breach is caused, or is otherwise suffered, by Customer or its sub-processor(s), Customer shall, at its expense, investigate, identify and remediate the Security Breach as soon as possible, and within five (5) business days.

6.4.           Customer shall, at its expense, provide full co-operation and assistance and all information as may be reasonably requested by TapResearch in relation to the Security Breach.

6.5.           Customer shall consult with TapResearch in advance regarding any public statements to be made relating to the Security Breach which directly references TapResearch. Unless required to do so by law, Customer shall not make any public statement relating to the Security Breach which directly references TapResearch without the prior written consent of TapResearch.

7.               RECORDS

7.1.           Customer shall maintain a record of the Processing activities carried out on behalf of TapResearch which shall, at a minimum, contain the following information: (a) a description of the Personal Data Processed by Customer, including the types of Personal Data, the categories of data subjects and the Processing activities carried out on behalf of TapResearch; (b) details of any transfers of Personal Data to a third country and the legal basis for the legitimate transfer of the same under the Data Protection Laws; (c) a general description of the technical and organization security measures used to protect Personal Data in accordance with paragraph 5.1; and (d) the name and contact details of the Customer’s Data Protection Officer, Chief Privacy Officer, Chief Information Security Officer or similarly qualified TapResearch Personnel.

7.2.           Customer shall promptly provide such records on request from TapResearch.

8.               TRANSFERS

8.1.           Personal Data shall only be transferred to locations as may be required or approved by TapResearch from time to time; in any event, Personal Data shall not be transferred outside of the United States without TapResearch’s prior written consent.If such transfers are required, Customer shall give TapResearch notice pursuant to paragraph 13 of this DPA. 

9.               AUDITS

9.1.           On reasonable notice, Customer shall allow TapResearch and any auditors of or other advisers to TapResearch to access any Customer premises, systems, Personnel and relevant records as may be reasonably required in order to undertake verifications of compliance with the provisions of this DPA.

9.2.           Customer shall provide TapResearch (and its auditors and other advisers) with all reasonable co-operation, access and assistance in relation to each audit.

10.            APPLICABLE LAW

10.1.         Customer shall Process the Personal Data in compliance with the Data Protection Laws.

11.            ENTIRE AGREEMENT

11.1.         This DPA constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. In the event of a conflict between one or more terms in this DPA and anything in the Agreement between the parties, the language in the Agreement shall prevail.

11.2.         Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this DPA.

12.            JURSIDCTION AND GOVERNING LAW

12.1.         The validity, construction and performance of this DPA (and any claim, dispute or matter arising under or in connection with it or its enforceability) and any non-contractual obligations (including negligence) arising out of or in connection with it, shall be governed and construed in accordance with the laws as stated in the other Agreement between the parties.

12.2.         Each party irrevocably submits to the exclusive jurisdiction of the courts as stated in the Agreement between the parties over any claim, dispute or matter arising under or in connection with this DPA or its enforceability or the legal relationships established by this DPA (including non-contractual disputes or claims).

13.            NOTICE

All notice to TapResearch under this DPA (except the Security Breach notice described in paragraph 6.2) shall be made in accordance with the Agreement between the parties.