Master Services Agreement
Last updated: April 13, 2017
This Master Services Agreement (the “Agreement”), is effective and made as of the date (“Effective Date”), by and between TapResearch Inc. (“TapResearch”) and Customer, as defined by the date of Customer Sign Up.
Subject to the terms of this Agreement, TapResearch will perform survey-related work (“Services”) for Customer in accordance with the terms of the applicable order form or other ordering instrument, such as a statement of work,, purchase order or customer-configured project specifications, that is mutually agreed upon and executed by the parties (each an “Ordering Document”). Each Ordering Document will set forth the terms of the engagement, describe the Services (including the parameters and scope of such Services), and set forth the applicable fees for the Services. Customer will notify TapResearch when to cease its performance of the Services, upon which the Services under the applicable Ordering Document will conclude (“Survey Completion”). The parties agree that TapResearch may use its affiliated companies or contractors to perform 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 Services under the applicable Ordering Document. An Ordering Document may only be modified through a Change Order (defined below).
2. FEES; PAYMENTS; TAXES
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: (i) Customer may only reject a survey that it believes in good faith to contain substantially poor respondent data or fraudulent data; (ii) 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 (iii) 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 Late Payments.
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 shall be in addition to the fees for the Services.
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. OWNERSHIP; LICENSE
Unless otherwise set forth in this Agreement and subject to the terms herein and Customer’s compliance therewith, Customer receives a limited, revocable, nonexclusive, nontransferable license to use the responses received from survey respondents and delivered by TapResearch under the applicable Ordering Document, provided such use is made solely for Customer’s own internal business purposes and not for any commercial gain.
Notwithstanding anything to the contrary, TapResearch and its licensors will exclusively own and retain all rights, title, and interest in and to any and all data, information or software relating to or collected through TapResearch’s performance of the Services (including but not limited to the data obtained from survey respondents) and any usage data and compilations thereof, and any and all feedback provided by Customer in connection with this Agreement (collectively, “Survey Materials”). No rights or licenses, whether express or implied, are granted by TapResearch or its licensors except as expressly set forth in this Agreement, and TapResearch hereby reserves all rights not so granted.
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 Survey 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.
Each party will keep confidential, and neither party will use for any purpose, or disclose to any third party, any Confidential Information of the other party, except as otherwise permitted by this Agreement. The receiving party will use a degree of care in protecting the disclosing party’s Confidential Information which it uses in protecting its own Confidential Information, which shall in no event be less than reasonable care. Notwithstanding anything to the contrary, TapResearch may disclose Customer’s Confidential Information to TapResearch’s employees, directors, officers, agents, contractors, attorneys, accountants, and other third parties who have a “need to know” in connection with the performance of TapResearch’s obligations hereunder. Customer acknowledges that unauthorized disclosures of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy, and therefore upon any such disclosure by Customer, TapResearch will be entitled to seek appropriate equitable relief in addition to whatever other remedies it may have at law.
The obligations under Section 4.2 do not apply to information to the extent such information: (a) has been independently developed by the receiving party without access to the other party’s Confidential Information; (b) has become publicly known through no breach of this Section 4 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and uses its best efforts to assist in obtaining an order to protect the information from public disclosure.
Customer hereby grants to TapResearch a royalty-free, fully paid up, sub-licensable, transferrable, non-exclusive, worldwide and perpetual license to reproduce, display, distribute and otherwise use the trademarks, service marks, logos or other indicia of origin associated with Customer for the purpose of indicating that Customer is a client of TapResearch in TapResearch’s advertising, marketing or other promotional materials. During the Term, both parties shall have the right to issue press releases discussing the partnership created under this Agreement, provided that both parties shall approve of each press release in writing prior to any distribution of such press release (which approval shall not be unreasonably withheld). Neither party may discuss the details of this Agreement as part of such press release.
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.
6.1 Customer Indemnification.
Customer agrees to indemnify, defend and hold TapResearch and its affiliates and their respective officers, directors, employees, agents, and independent contractors harmless from and against any losses, costs, liabilities, damages, claims and expenses, including attorneys’ fees, arising out of: (a) Customer’s breach of this Agreement; or (b) claims that any Survey Specs or any content thereof made available or provided by Customer infringes any third party’s intellectual property rights, privacy, rights of publicity or other rights. Customer reserves the right, at Customer’s sole expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify TapResearch and TapResearch agrees to reasonably cooperate with Customer’s defense of such claims. Customer shall not enter into any settlement for which indemnity is sought unless: (1) such settlement includes an unconditional release of TapResearch from all liability on all claims; or (2) TapResearch gives its prior written approval, which shall not be unreasonably withheld.
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.
8.1 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
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 Section 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.
10.1 Governing Law; Venue.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any suit or proceeding arising out of or relating to this Agreement will be brought in the federal and/or state courts, as applicable, in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of such courts. Notwithstanding the foregoing, any dispute arising hereunder will be negotiated in good faith between the parties within thirty (30) days commencing upon written notice from one party to the other and neither party will file an action prior to the termination of such thirty (30) day period. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, which shall not be considered a breach of this Agreement.
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 arbitration or 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.
All notices or questions concerning this Agreement should be directed to TapResearch as follows:
To TapResearch: TapResearch Inc.
1001 Laurel Street, Suite B
San Carlos, CA 94070
10.6 Entire Agreement; Counterparts.
This Agreement and all Ordering Documents (if any) 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. An executed version of this Agreement that is scanned and delivered via email or fax, will, for all purposes be deemed an original. This Agreement may be executed in two or more counterparts, each of which shall be an original and together which shall constitute one and the same instrument.
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.
Customer may not transfer or assign any of Customer’s rights or licenses granted to Customer hereunder, whether in whole or in part, without first obtaining the prior written consent of TapResearch, and any attempt to do so will be null and void. TapResearch may assign or transfer this Agreement at any time without Customer’s consent.
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.
10.11 No Third Party Beneficiaries.
Except for each party’s permitted successors and assigns, there are no third party beneficiaries under this Agreement, and no term of this Agreement shall be enforceable by any person that is not a party hereto.
In the event of a dispute between the parties, this Agreement will not be construed for or against either party, but will be interpreted in a manner consistent with the intent of the parties as evidenced by the terms of this Agreement.