These Master Terms are posted by TapResearch, Inc. (“TapResearch,” “we,” “us,” or “our”) and govern your use of the TapResearch website (the “Website”), research platform (the “Platform”), research services (“Research Services”) and other services (collectively, the “Services”).
By clicking to accept this Agreement or otherwise registering or proceeding on the Website, or by otherwise using the Website, the Platform or any other Services, you acknowledge that you have read and understood this Agreement, and agree to be bound by all the terms and conditions herein. If you are accepting this Agreement on behalf of an organization, you also represent and warrant that you are authorized to do so. In such cases, the references to “you” or “your” in this Agreement refer to your organization. As used herein, “Effective Date” means the date of acceptance by you in accordance with this Section.
This Agreement contains the complete and definitive terms and conditions governing your use of the Services. TapResearch will not be bound by additional or alternative terms or conditions, printed or otherwise; provided, however, that TapResearch may also circulate an order form or other ordering instrument, such as a statement of work, purchase order or project specifications, as mutually agreed upon and executed by both parties (each an “Ordering Document”). In the case of a conflict between an Ordering Document and this Agreement, this Agreement shall control, unless the Ordering Document expressly identifies the conflict and states that it shall control.
3. PROHIBITED USES.
Without limiting any other prohibition in this Agreement, you agree you will not and will not permit any third party to: (a) copy, translate, create derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the Services or otherwise attempt to discover any source code or modify the Services in any manner or form; (b) access, penetrate, probe or scan the Services for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes; (c) use the Services to conclude fraudulent or otherwise illegal surveys; or (d) use the Services for the purpose of building a similar or competitive offering. You further agree you will not and will not permit any third party to use the Services: (1) in violation of, or which would cause another person to be in violation of, applicable laws, including without limitation the U.S. economic sanctions administered by the Office of Foreign Assets Control, U.S. Department of the Treasury; (2) to publish, post, upload, send, store or otherwise transmit material that is unlawful, harassing, libelous, defamatory, threatening or otherwise in violation of any third party rights of privacy or other intellectual property rights; or (3) to publish, post, upload, or otherwise transmit material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs that are intended to interfere with or otherwise disrupt the integrity or performance of the Services.
4.1 Confidential Information. As used herein, “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,” or any information reasonably identifiable as confidential or proprietary by the receiving party. TapResearch’s Confidential Information shall include without limitation any data, information or software on TapResearch’s proprietary systems relating to or collected through TapResearch’s performance of the Services and any usage data, demographic data, and compilations thereof, as well as any and all feedback provided by you in connection with this Agreement (collectively, the “TapResearch Materials”), as well as 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.
4.2 Confidentiality 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 your 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. You acknowledge 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 you, TapResearch will be entitled to seek appropriate equitable relief in addition to whatever other remedies it may have at law.
4.3 Exclusions. 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.
You hereby grant to TapResearch a royalty-free, fully paid up, sub-licensable, transferrable, nonexclusive, worldwide and perpetual license to reproduce, display, distribute and otherwise use your trademarks, service marks, logos or other indicia of origin associated for the purpose of indicating that you are a Customer and/or Developer in TapResearch’s advertising, marketing or other promotional materials. Each party shall have the right to issue press releases discussing its delivery or use of Services 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 the press release.
You represent, warrant, and during the term of this Agreement covenant that you are and shall remain in compliance with all applicable local, state, national and international laws, rules, and regulations, including but not limited to the Children’s Online Privacy Protection Act of 1998 (“COPPA”), the CAN-SPAM Act of 2003, any relevant data protection or privacy laws, including without limitation the California Consumer Privacy Act (“CCPA”), the UK General Data Protection Regulation (“UK GDPR”), and the EU General Data Protection Regulation (“GDPR”), and any laws, rules, or regulations regarding the transmission of technical data exported from your country of residence.
7. REPS AND WARRANTIES.
Without limiting any other representation, warranty, or covenant herein, each party hereby represents, warrants, and covenants that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TAPRESEARCH MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES OR ANY OTHER MATTERS OR MATERIALS CONNECTED THEREWITH OR PROVIDED HEREUNDER, ALL OF WHICH ARE OFFERED SOLELY ON AN “AS-IS” AND “AS AVAILABLE” BASIS. ANY USE OF THE SERVICES OR SURVEY MATERIALS IS AT YOUR SOLE RISK. TAPRESEARCH EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARANTY THAT THE SERVICES OR ANY OTHER CONTENT OR MATERIALS IN CONNECTION THEREWITH OR THE USE OF ANY OF THE FOREGOING WILL BE OF SATISFACTORY QUALITY, WILL BE UNINTERRUPTED OR ERROR-FREE, OR WILL YIELD A CERTAIN RESULT OR OTHERWISE BE OF ANY USE OR VALUE TO YOU, OR THAT THE WEBSITES OR THE SERVERS THAT MAKE THE SERVICES MATERIALS AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE REMEDIES SET FORTH UNDER THIS AGREEMENT WILL BE YOUR SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO THE SERVICES.
You agree 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, relating to or arising out of: (a) your breach of this Agreement, including without limitation any representations, warranties and covenants hereunder; (b) claims that any applications, materials, products, services, or software distributed, made available, or developed by you infringe any third party’s intellectual property rights, privacy, rights of publicity or other rights; (c) your breach of applicable laws, rules, or regulations; or (d) your gross negligence or willful misconduct. You shall not enter into any settlement for which indemnity is sought unless: (i) such settlement includes an unconditional release of TapResearch from all liability on all claims; or (ii) the TapResearch gives its prior written approval of such settlement, which shall not be unreasonably withheld.
10. LIMITATION OF LIABILITY.
IN NO EVENT SHALL TAPRESEARCH, ITS AFFLIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, SUPPLIERS, AFFILIATES, OR THIRD PARTIES PROVIDING INFORMATION ON THE WEBSITE OR THE PLATFORM BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF TAPRESEARCH OR ANY OF THE RELATED PARTIES NAMED ABOVE HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
IN NO EVENT SHALL THE TOTAL LIABILITY OF TAPRESEARCH, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, SUPPLIERS, OR AFFILIATES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THE SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNTS PAID OR PAYABLE HEREUNDER (IN DEVELOPER’S CASE, AMOUNTS PAID TO DEVELOPER, AND IN CUSTOMER’S CASE, AMOUNTS PAID BY CUSTOMER) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM OR $10,000, WHICHEVER IS LESSER. THE PARTIES AGREE THAT THE FORGOING PROVISIONS FAIRLY ALLOCATE THE PARTIES’ RISKS AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN.
11.1 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. Except as otherwise required under any applicable law, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
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 with any court or arbitrator 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.
11.2 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.
11.3 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, epidemics, pandemics, 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 11.3 does not excuse either party from any of its payment or confidentiality obligations.
11.4 Notices. All notices or questions concerning this Agreement should be directed to TapResearch as follows:
1010 El Camino Real, Suite 300
Menlo Park, CA 94025
All notices to you will be shall be sent to any of the contacts you have provided to TapResearch in writing. Notices hereunder shall be delivered by certified mail or nationally recognized express delivery service and deemed given upon receipt.
11.5 Entire Agreement. This Agreement sets forth the entire agreement between you and TapResearch, 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 a Customer's purchase order or similar document, whether dated before or after the date of this Agreement, are expressly rejected. These Master Terms may only be altered or modified by written instrument duly executed by both parties.
11.6 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.
11.7 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.
11.8 Survival. 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, including without limitation a party’s confidentiality, indemnification, and payment obligations, disclaimers, and limitations of liability, shall survive termination or expiration of this Agreement.