1.1. Fees for Services. You agree to pay to Opinionmeter the fees for the Services you purchase or use (including any overage fees – see 1.5 below), in accordance with the pricing details and payment terms for that Service. Opinionmeter will bill you according to the billing method you selected. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
1.2. Subscriptions – Automatic Renewal Some of our Services are subscriptions and will be billed as such. These services are referred to as “Subscriptions” and have recurring billing cycles. Billing cycles are billed in advance on a recurring basis. Billing cycles are usually on an annual basis, however some may be on a monthly basis. Your Subscription will automatically renew at the end of each billing cycle unless we receive in writing your request to cancel within 60-days prior to the expiration date of the current subscription period. Requests to cancel should be sent by email to email@example.com. Note: by canceling your subscription, you will no longer be able to record survey data from any data collection modality or gain access to your SurveyManager account. All data should be exported from the Opinionmeter system before the cancellation or expiration of the current subscription period.
1.3. Taxes. Unless otherwise stated, you are responsible for any taxes (other than Opinionmeter’s income tax) or duties associated with the sale of the Services, including any related penalties or interest (collectively, “Taxes”). You will pay Opinionmeter for the Services without any reduction for Taxes. If Opinionmeter is obliged to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide Opinionmeter with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged.
1.4. Pricing Changes. Opinionmeter maintains the right to change the fees it charges for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. Opinionmeter will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.
1.5. Overage Fees. Unless otherwise stated, any overage fees incurred by you will be billed in arrears on a monthly basis. Overage fees that remain unpaid for 30 days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with that Service.
1.6 Overdue Payments. Payments that remain unpaid for 30 days after being billed may result in the limiting the access to the services purchased, which may result in a loss of your data associated with that Service.
2.2. Confidentiality. Opinionmeter will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including our privacy policies). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by Opinionmeter); (b) was lawfully known to Opinionmeter before receiving it from you; (c) is received by Opinionmeter from a third party without knowledge of breach of any obligation owed to you; or (d) was independently developed by Opinionmeter without reference to your Content.
Ownership of Content
3.1. Ownership of Your Content. You retain ownership of all of your intellectual property rights in your Content. Opinionmeter does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
3.2. IP Claims. If you believe an Opinionmeter user is infringing upon your intellectual property rights, you may report it by contacting firstname.lastname@example.org.
Intellectual Property Rights
4.1 Opinionmeter’s Ownership Rights. Opinionmeter shall retain exclusive ownership of all Opinionmeter Technology and all derivative works of its Technology, along with all Intellectual Property Rights therein, subject to the licenses granted herein. In the event Licensee has any rights in any modifications to the Opinionmeter Technology, such modifications will be assigned to Opinionmeter or in the event that such rights cannot be assigned to Opinionmeter, Licensee hereby unconditionally and irrevocably waives the enforcement of all such rights, and all claims and causes of action of any kind with respect to any of the foregoing against Opinionmeter, its successors and assigns, and the licensees and the customers of the foregoing, whether now known or hereafter to become known, and agrees at the request and expense of Opinionmeter and such successors, assigns and licensees to consent to and join in any action to enforce such rights.
5.1. User Content. The Services display content provided by others that is not owned by Opinionmeter. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. Opinionmeter is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
5.2. Content Review by Opinionmeter. You acknowledge that, in order to ensure compliance with legal obligations, Opinionmeter may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. However, Opinionmeter otherwise has no obligation to monitor or review any content submitted to the Services.
5.3. Third Party Resources. Opinionmeter may publish links in its Services to internet websites maintained by third parties. Opinionmeter does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.
6.1. Keeping Your Password Secure. If you have been issued an account by Opinionmeter, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Opinionmeter, are responsible for any activity occurring in your account (other than activity that Opinionmeter is directly responsible for which is not performed in accordance with the Customer’s instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Opinionmeter immediately. Accounts may not be shared and may only be used by individuals registered as users within the account.
6.2. Keeping Your Details Accurate. Opinionmeter occasionally sends important notices to the email address associated with your account. You must keep your email address and your contact details and payment details associated with your account current and accurate. Accounts are controlled by the contact whose email address is registered with the account. To manage your contact details, please use the ‘Update Your Profile’ button within the Main Console of your account. The Main Console is the first screen you come to after logging into your account.
6.3. Backup your Data. Although Opinionmeter takes great care to maintain redundant backups of all data, you are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, Opinionmeter will not be liable for any failure to store, or for loss or corruption of, your Content.
6.4. Account Inactivity. Opinionmeter may terminate your account and delete any content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you an opportunity demonstrate activity within the account.
7.1. Legal Status. In order to use the Services, all individuals must have the power to form a contract with Opinionmeter. Opinionmeter’s Services are intended for use by individuals 13 years or older. If you are under 13 years old or do not have the power to form a contract with Opinionmeter, you may not use the Services. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation and that you have duly authorized your agent to bind you to these Terms.
7.2. Embargoes. You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from Opinionmeter.
7.3 Blacklisted IP’s. Opinionmeter’s survey apps require connectivity to Opinionmeter’s hosted servers in order to function properly. In the event a user’s host IP is blacklisted (the survey app connects through the host IP to reach Opinionmeter’s servers) this may result in restricted connectivity to the Opinionmeter servers. It is the user’s responsibility to maintain their IP and avoid it from being blacklisted.
8.1. Legal Compliance. You must use the Services in compliance with, and only as permitted by, applicable law.
8.2. Your Responsibilities. You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services:
(a) You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
(b) You may not circumvent or attempt to circumvent any limitations that Opinionmeter imposes on your account (such as by opening up a new account to conduct a survey that was closed for a Terms violation).
(c) Unless authorized by Opinionmeter in writing, you may not probe, scan, or test the vulnerability of any Opinionmeter system or network.
(d) Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Services, or attempt to do so.
(e) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.
(f) You may not engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. Opinionmeter will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Opinionmeter.
(g) You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity.
(h) Unless authorized by Opinionmeter in writing, you may not resell or lease the Services to other users or 3rd parties.
(i) If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless Opinionmeter has agreed otherwise. You may not use the Services in a way that would subject Opinionmeter to those industry-specific regulations without obtaining Opinionmeter’s prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle “protected health information” (as defined in 45 C.F.R. §160.103 under United States federal regulations) without entering into a separate business associate agreement with Opinionmeter that permits you to do so.
9.1. Termination by You. If you terminate a Subscription before the end of a billing cycle, you will not receive a refund for any remaining period of time not used within that billing cycle unless you are terminating the Agreement for our breach and have so notified us in writing, or unless a refund is required by law.
9.2. Termination by Opinionmeter. Opinionmeter may suspend, or stop providing the Services to you if you fail to comply with these Terms (such as a failure to pay fees when due), or if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services. Opinionmeter may also suspend providing the Services to you if we are investigating suspected misconduct by you. If we suspend or terminate the Services you receive, we will attempt to provide you with advance notice so you have time to export your content and data prior to closure of your account. Opinionmeter has no obligation to retain your Content and Data following the termination of Services.Note:If Opinionmeter stops providing the Services to you because you repeatedly or egregiously breach these Terms, Opinionmeter may take additional measures to prevent your ability to access the Services, including blocking your IP address.
10.1. Changes to Terms. Opinionmeter may change its Terms at any time for a variety of reasons, to reflect updates to Services, and to account for new Services or functionality. Opinionmeter may also provide notification of changes on its blog, newsletter or via email. In order for certain changes to become effective, applicable law may require Opinionmeter to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not agree to any of the changes made to the terms for a Service, you it is your right to stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
10.2. Changes to Services. Opinionmeter is continually changing and updating the Services. Opinionmeter may add, alter, or remove functionality from a Service at any time without prior notice. Opinionmeter may also limit, suspend, or discontinue a Service at its discretion. If Opinionmeter discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from that Service. Opinionmeter may remove content from the Services at any time in our sole discretion, although we will endeavor to notify you beforehand if the change would directly impact you and if practicable under the circumstances.
Warranties and Disclaimers
11.1. Disclaimers. While Opinionmeter endeavors to provide you with a great experience when using the Services, there are some things we cannot promise. For example, we try our best to keep our online Services up 24x7x365, but they may become temporarily unavailable from time to time for various reasons. OTHER THAN THE WARRANTIES SET FORTH ABOVE, OPINIONMETER DOES NOT MAKE ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE OMI TECHNOLOGY OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY OMI HEREUNDER. ALL PRODUCTS AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED ”AS IS”. OPINIONMETER DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SURVEY SOFTWARE WILL BE CORRECTED. THERE ARE NO OTHER WARRANTIES RESPECTING THE OPINIONMETER SURVEY SOFTWARE OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF OPINIONMETER HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF OPINIONMETER IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF OMI AS SET FORTH HEREIN.
11.2. Limitation of Liability. OPINIONMETER’s LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNTS PAID BY YOU TO OPINIONMETER FOR USE OF THE SERVICES AT ISSUE DURING THE 3 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$50.00.. IN NO EVENT SHALL OMI BE LIABLE FOR ANY LOSS OF PROFITS OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF OMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.3 General Indemnity. Neither Party shall be responsiblefor those acts or omissions of the other Party to which such Party does not contribute, including without limitation the amount, accuracy, timeliness of transmittal or due authorization of any entry originated from a Survey Device. To the extent allowed by law, each Party agrees to indemnify, defend and save harmless the other Party against any loss, liability or expense (including attorneys’ fees and expenses) resulting from or arising out of any claim by any third party that such Party is responsible for any act or omission of the other Party to which act or omission the Party seeking indemnification hereunder does not contribute.
11.4. Businesses. If you are a business, you will indemnify and hold harmless Opinionmeter and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding or in connection with your use of the Services or a breach of these Terms, to the extent that such liabilities, damages and costs were caused by you.
12.1. Who you are contracting with. Unless otherwise specified in relation to a particular Service, the Services are provided by, and you are contracting with, Opinionmeter Inc.
12.2. Opinionmeter International For any Service provided by Opinionmeter International, the following provisions will apply to any terms governing that Service:
- Contracting Entity. References to “Opinionmeter”, “we”, “us”, and “our” are references to Opinionmeter Inc., located at 14727 Catalina Street, San Leandro, CA 94577, United States of America.
- Governing Law. Those terms are governed by the laws of the State of California (without regard to its conflict of laws provisions).
- Jurisdiction. Except if prohibited by applicable law, each party submits to the exclusive jurisdiction of the state courts located in Alameda County, California, and the federal courts located in the Northern District of California with respect to the subject matter of those terms.
13.1 Assignment and Successors. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns, except that neither Party shall have the right to assign or otherwise transfer its rights hereunder or any interest therein without the prior written consent of the other Party.
13.2 Entire Agreement. This Agreement supersedes all prior or contemporaneous agreements, representations, warranties and understandings and contains the entire agreement between the parties hereto. No amendment, modification, termination, or waiver of any provision of this Agreement nor consent to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by duly authorized representatives of each party hereto and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on Licensee in any case shall entitle it to any other or further notice or demand in similar or other circumstances.
13.3 Independent Contractors. This Agreement does not in any way create the relationship of principal and agent, or any similar relationship, between Opinionmeter and User. It is the express intention of the Parties that Licensee act in the capacity of an independent contractor.
13.4 Interpretation. The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
13.5 No Waiver. No failure or delay on the part of Opinionmeter in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder.
13.6 Severability. If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
13.7 Arbitration. Any controversy, dispute or claim between the parties arising out of, related to or in connection with this Agreement, or the performance or breach hereof or thereof, including with respect to the arbitrability of such controversy, dispute or claim, if not settled by negotiation, shall be submitted to and settled by arbitration conducted by the American Arbitration Association in Alameda County, California, in accordance with its Commercial Arbitration Rules as then in effect. The arbitration shall be by a single arbitrator, mutually selected by Opinionmeter and User, and if the parties do not agree within twenty (20) days after the date of notification of a request for such arbitration made by either of the parties, the selection of the single arbitrator shall be made by the American Arbitration Association in accordance with said rules. In addition to, and not in substitution for any and all other relief, in law or equity, the arbitrator may grant equitable relief and specific performance to compel compliance hereunder. The determination of the arbitrator shall be final, binding and conclusive on the parties, and judgment on the arbitrator’s award, including equitable relief and specific performance, may be entered in and enforced by any court having jurisdiction thereof. Fees and expenses of the American Arbitration Association and of the arbitrator shall be borne as shall be determined by the arbitrator, and the arbitrator may in his discretion award attorneys’ fees and expenses in addition to any other remedy that is allowed and regardless of whether such remedy includes an award of damages.
13.8 Third Party Beneficiaries. There are no third party beneficiaries to these Terms.
13.9 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws rules. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. The U.N. Convention on Contracts for the International Sale of Goods and the Unfair Contracts Act in the United Kingdom shall not apply to this Agreement