Customer Services Agreement
Last updated: January 14, 2022
TAPRESEARCH CUSTOMER TERMS AND CONDITIONS
THE CUSTOMER TERMS AND CONDITIONS POSTED TO THIS WEBPAGE (“CUSTOMER TERMS”) ARE INCORPORATED INTO AND FORM A PART OF THE TAPRESEARCH MASTER TERMS AND CONDITIONS (THE “MASTER TERMS”).
AS USED HEREIN, THE TERM “AGREEMENT” REFERS COLLECTIVELY TO THE MASTER TERMS, THESE CUSTOMER TERMS, THE DATA PROCESSING AGREEMENT (“DPA”), AND ALL ORDERING DOCUMENTS (AS DEFINED IN THE MASTER TERMS), IF ANY.
These Customer Terms are posted by TapResearch, Inc. (“TapResearch,” “we,” “us,” or “our”) and govern your use of research services provided by TapResearch (the “Research Services”).
Any capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Master Terms.
Nothing herein is intended to limit the obligations in the Master Terms; however, in the case of a conflict between these Customer Terms and the Master Terms, these Customer Terms shall control.
1.1 Description of Services. Subject to the terms of this Agreement, TapResearch will perform the Research Services for Customer in accordance with the terms of the applicable Ordering Document. Each Ordering Document will set forth the terms of the engagement, describe the Research Services (including the parameters and scope of such Research Services), and set forth the applicable fees for the Research Services. Customer will notify TapResearch when to cease its performance of the Research Services, upon which notice the Research Services under the applicable Ordering Document will conclude (“Survey Completion”).
The parties agree that TapResearch may use its affiliated companies or contractors to perform Research Services. Each Ordering Document is incorporated herein by reference and will be governed by this Agreement. Company will provide TapResearch with a set of survey questions, or survey specifications and survey entry link, and any other related materials (“Survey Specs”), which are intended to be presented, offered and made available to survey respondents in connection with TapResearch’s performance of the Research Services under the applicable Ordering Document. An Ordering Document may only be modified through a Change Order (as defined below in Section 5 below).
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 Research 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 Research 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 Research Services performed, including without limitation the validity of the accepted and/or rejected surveys relating to such Research 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 Research Services rendered.
Except as expressly set forth in this Agreement, the Research Services are non-cancelable and all fees with respect to the Research Services are non-refundable. Customer is not entitled to withhold or offset any amounts with respect to the Research 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 Research 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. Unless otherwise set forth in an Ordering Document and subject to Customer’s compliance with the terms of this Agreement (including without limitation the prohibited uses in Section 3.3 below), Customer hereby receives a limited, revocable, nonexclusive, nontransferable license to use any responses received from survey respondents that are stored on the TapResearch platform for the duration of the Term, provided such use is made solely for Customer’s business purposes.
3.2 Ownership. Notwithstanding Section 3.1 above, TapResearch and its licensors will exclusively own and retain all rights, title, and interest in and to the TapResearch Materials (as defined in the Master Terms). As between Customer and TapResearch, all intellectual property rights in and to Survey Specs, survey data, and responses collected and processed solely by You off the TapResearch platform without use of the TapResearch Materials is owned exclusively by You (collectively, “Survey Data”).
3.3 Prohibited Uses. Customer’s use of the Research Services shall not include service bureau use, reselling, outsourcing, renting, distributing, sublicensing, or otherwise commercially exploiting or making available to any third party the Research Services. 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.
4.1 Personal Data Elements within Survey Data. The parties acknowledge and agree that with regard to the control and processing of personal data elements within the Survey Data, Customer is the controller and TapResearch is the processor, as such terms are defined under the Data Protection Laws and Regulations (as defined below in Section 4.2). Customer represents, warrants, and covenants that it shall control and use personal data in accordance with the requirements of Data Protection Laws and Regulations, and Customer’s instructions for the processing of personal data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the accuracy, quality, appropriateness and legality of any such personal data and the means by which TapResearch acquires any such personal data.
4.2 Personal Data Elements within TapResearch Materials. The parties also acknowledge and agree that with regard to the control and processing of personal data elements within the TapResearch Materials, TapResearch is the controller and Customer is the processor, as such terms are defined under the Data Protection Laws and Regulations (as defined below). TapResearch shall control and use personal data in accordance with the requirements of Data Protection Laws and Regulations. TapResearch’s instructions for the processing of personal data shall comply with Data Protection Laws and Regulations.
TapResearch shall have sole responsibility for the accuracy, quality, appropriateness and legality of any such personal data and the means by which the Customer acquires any such personal data. If the parties have not executed a separate data processing agreement, TapResearch’s form of data processing agreement shall apply to any personal data processed by Customer at the direction of TapResearch, as set forth in the DPA.
“Data Protection Laws and Regulations” means all laws and regulations, including laws and regulations of the United States, European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the processing of personal data under this Agreement, including without limitation CCPA, UK GDPR, and GDPR.
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 Research 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”).
6. TERM AND TERMINATION
6.1 Term. The Agreement will commence on the Effective Date and will remain in effect until terminated in accordance with Section 6.2 (the “Term”).
6.2 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 Customer engages in a prohibited use under Section 3 of the Master Terms, violates applicable law, or breaches its confidentiality obligations hereunder.
6.3 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.
7. 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.
8. 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 Research Services; or (b) it is discovered that Customer has materially failed to maintain accurate records in accordance with this Section 8.