Master Services Agreement
Last updated: March 1, 2019
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.
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;
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.
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
OWNERSHIP; PROHIBITED USES OF THE SERVICES
AND COMPLIANCE OBLIGATIONS
” 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.
Data Elements within Survey Data
Data Elements within TapResearch Materials
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.
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.
7. LIMITATION OF
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.
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
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”).
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.
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.
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.
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.
. 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
1010 El Camino Real, Suite 300
Menlo Park, CA 94025
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.
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.
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
(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
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.
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.
: March 1, 2019.
Copyright 2019, TapResearch Inc.
All Rights Reserved.
This Data Processing Agreement (this “DPA”)
is entered into by and between the customer for whom TapResearch is performing
Services (“Customer”) and
and shall be effective as of the Effective Date of the Agreement.
” 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;
” means any information relating to an identified or identifiable
natural person within the TapResearch Materials;
means all officers, directors and employees (including of its affiliates),
independent contractors or service providers of either Customer or TapResearch;
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
means any services set out in any agreement between TapResearch and Customer.
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.
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.
shall immediately notify TapResearch if, in its opinion, any instruction made
pursuant to this
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.
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.
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.
Customer shall take all such
steps as are necessary to ensure the reliability of Personnel who have access
to Personal Data.
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.
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.
Customer shall not appoint a
sub-processor without the prior written consent of TapResearch.
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.
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.
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.
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.
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.
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 “
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.
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)
shall, at its expense, provide full co-operation and assistance and all
information as may be reasonably requested by TapResearch in relation to the
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.
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
shall promptly provide such records on request from TapResearch.
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.
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.
shall provide TapResearch (and its auditors and other advisers) with all
reasonable co-operation, access and assistance in relation to each audit.
shall Process the Personal Data in compliance with the Data Protection Laws.
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.
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.
AND GOVERNING LAW
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.
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
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.