Terms of Service
Last updated August 17, 2020
Terms of Service-
Terms of Service
Last updated August 17, 2020
The terms below are effectively immediately for users who sign up on or after August 17, 2020. For users who signed up before August 17, these terms will be effective from August 31, 2020.
This Terms of Service Agreement governs customer’s acquisition and use of services made available by Sogolytics (formerly SoGoSurvey), LLC ("Sogolytics", "We", "Us" or "Our") including, but not limited to, free trials, free services, beta services, limited releases, developer previews, paid services, subscription based services, enterprise services and/or any other service or product offered or made available by Sogolytics. Please read the contents of this document carefully before using any Sogolytics product or service.
Sogolytics operates the website at the URL https://www.sogolytics.com and Software As A Service based web apps and mobile apps with related tools and processes to create surveys and associated services ("Surveys") for use by Customers and their authorized representatives.
- Anti-Spam Policy: https://www.sogolytics.com/anti-spam-policy/
- GDPR Addendum (if applicable)
If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term "Customer" shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these terms of service, such individual must not accept this Agreement and may not use the services.
Sogolytics’s direct competitors are prohibited from accessing the Services, except with Sogolytics’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.
This Agreement is effective between Customer and Sogolytics as of the date of Customer’s accepting this Agreement.
- "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- "Beta Services" means Sogolytics services or functionality that may be made available to Customer to try at no additional charge and which is clearly designated as test, beta, pilot, limited release, developer preview, non-production, evaluation, trial, or by a similar description.
- "Content" means information created by Sogolytics or obtained by Sogolytics from publicly available sources or its third-party content providers and made available to Customer through the Services, Beta Services, or pursuant to an Order Form.
- "Customer" means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
- "Customer Data" means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-Sogolytics Applications.
- "Free Services" means Services that Sogolytics makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
- "Documentation" means the information available on Sogolytics.com website; user guide; help files; tutorials including written, audio, and video; policies; procedures and other information available at https://www.sogolytics.com/help/ or after logging into applicable services as updated from time to time.
- "Non-Sogolytics Application" means a web-based, mobile, offline or other software application functionality provided by Customer that interoperates with a Service. Non-Sogolytics Applications, other than those obtained or provided by Customer, will be identifiable as such.
- "Malicious Code" means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.
- "Online Agreement" means this Agreement, if this Agreement is accepted by Customer by: (1) signing up for a free trial or free service, or (2) signing up for a paid service online, or (3) clicking a box indicating acceptance, or (4) executing an Order Form online that references this agreement, or (5) by creating an account on or through the Site or a Service; and does not include Signed Agreement.
- "Order Form" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Sogolytics and Customer or any of the Customer’s Affiliates, including any addenda and supplements thereto. For the purpose of this Agreement, the term "Order Form" includes documents titled "Sales Order Form". By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- "Purchased Services" means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Beta Services, Free Services, or those provided pursuant to a free trial.
- ""Services" means the products and services that are ordered by Customer under an Order Form or online purchasing portal or provided to Customer free of charge (as applicable) or under a free trial, and made available online by Sogolytics, including associated Sogolytics offline or mobile components. It includes the website https://www.sogolytics.com along with related tools and processes to create individualized surveys, quizzes, polls, forms, and associated services for use by Customers including any sample survey questions, templates, and related materials. It includes free trials, free services, beta services, limited releases, developer previews, paid services, subscription-based services, enterprise services, and/or any other service or product offered or made available by Sogolytics. "Services" exclude Content and Non-Sogolytics Applications.
- "Signed Agreement" means this Agreement if this Agreement is accepted by Customer by physically or digitally signing this Agreement.
- "Site" means the website at https://www.sogolytics.com
- "Sogolytics" means the Sogolytics company described in Introduction above.
- "Survey" shall have the meaning assigned to it in Introduction above.
- "User" means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Sogolytics without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Sogolytics at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors, and agents of Customer, and third parties with which Customer transacts business.
- "You" or "Your" means Customer and/or User, as may be applicable depending upon the context in which it is used.
2. SOGOLYTICS RESPONSIBILITIES
2.1 Provision of Purchased Services. Sogolytics will:
- make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation.
- use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Sogolytics shall give advance electronic notice), and (ii) any Force Majeure event under the terms of this Agreement, and
- provide the Services in accordance with applicable laws and government regulations, and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation, and the applicable Order Form.
2.3 Sogolytics Personnel. Sogolytics will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Sogolytics’s obligations under this Agreement, except as otherwise specified in this Agreement.
2.4 Beta Services. From time to time Sogolytics may offer You special offers or customized features in the form of a Beta Service. Sogolytics may offer the Beta Services at no charge. Customer may try such Beta Services its sole discretion. All data or information created, saved, or used in Beta Services is subject to deletion without notice and without assigning any reason. Sogolytics has no obligation to retain any data, provide any support, maintain any standard of service, or any other liability or obligation with respect to Beta Services. You understand that Beta Services are provided by Sogolytics for the sole purpose of allowing You to test a feature or service so that You can provide feedback to Sogolytics to improve the feature or service.
ANY DATA CUSTOMER ENTERS INTO BETA SERVICES AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR CUSTOMER DURING CUSTOMER’S USE OF BETA SERVICES IS SUBJECT TO PERMANENT LOSS OR ERASURE AT ANY TIME WITHOUT ANY NOTICE. CUSTOMER ASSUMES SOLE RISK FOR ANY DAMAGE OR LOSS ARISING FROM THE USE OF ANY BETA SERVICE, FAILURE OF ANY BETA SERVICE, ERASURE OF DATA, OR OTHERWISE ANY DAMAGE OR LOSS ASSOCIATED WITH THE USE OF BETA SERVICES. NOTWITHSTANDING THE "REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS" SECTION AND "INDEMNIFICATION BY SOGOLYTICS" SECTION BELOW, BETA SERVICES ARE OFFERED "AS-IS" WITHOUT ANY WARRANTY AND SOGOLYTICS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO BETA SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SOGOLYTICS’S LIABILITY WITH RESPECT TO BETA SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE FOREGOING, SOGOLYTICS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF BETA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF BETA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE USE OF BETA SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE "LIMITATION OF LIABILITY" SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SOGOLYTICS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF BETA SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.5 Free Trial. If Customer registers on Sogolytics’s website for a free trial, Sogolytics will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by Sogolytics in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SERVICES AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS BEFORE THE END OF THE TRIAL PERIOD CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM PREMIUM PACKAGE TO PRO PACKAGE); THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE IRRECOVERABLY AND PERMANENTLY LOST. CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
NOTWITHSTANDING THE "REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS" SECTION AND "INDEMNIFICATION BY SOGOLYTICS" SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY AND SOGOLYTICS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SOGOLYTICS’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE FOREGOING, SOGOLYTICS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE "LIMITATION OF LIABILITY" SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SOGOLYTICS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.6 Free Services. Sogolytics may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer understands that the provision of Free Services is based on the limits placed upon Free Services by Sogolytics. Customer shall not attempt to circumvent any limit placed upon the use of Free Services by any Customer in any manner, including but not limited to use of multiple accounts. Customer agrees that Sogolytics, in its sole discretion and without assigning any reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Sogolytics will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Sogolytics terminates Customer’s account, except as required by law, Sogolytics will provide Customer a reasonable opportunity to retrieve its Customer Data.
NOTWITHSTANDING THE "REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS" SECTION AND "INDEMNIFICATION BY SOGOLYTICS" SECTION BELOW, THE FREE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY AND SOGOLYTICS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SOGOLYTICS’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE FOREGOING, SOGOLYTICS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE "LIMITATION OF LIABILITY" SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SOGOLYTICS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3. USE OF SERVICES AND CONTENT
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or equivalent communication, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Sogolytics regarding future functionality or features.
3.2 Usage Limits. Sogolytics may place technical or non-technical limitations on the use of the Service(s) by Customer, including but not limited to allocation of storage space or bandwidth; maximum invitations and/or reminders per day, month, or year; maximum responses per day, month, or year; number of folders; number of questions per survey; number of answer options per question; length of questions and answer text; size and count of multimedia for a survey; languages available for translation; total number of surveys, polls, or quizzes; allowed email bounce limit; question display logic rules per page or survey; advanced branching or skipping logic; contact lists; number of contacts in each list; test invitations; file library size and file count; report filters; survey/quiz completion notification emails; storage space; bandwidth allocation; and any other limitation mentioned in the Order Form, Documentation, Anti-Spam Policy, or as specified in the Service. Sogolytics shall not be liable for any loss or damage faced by the Customer or any third party as a result of any technical or non-technical limitation, whether or not such limitation is explicitly mentioned above. Sogolytics may, where technically possible and feasible, and subject to execution of an additional Order Form by Customer, offer to increase certain limits placed upon certain features and functionalities. Customer understands that Sogolytics may refuse to increase a limitation for any reason at its sole discretion. Customer further understands that certain technical limitations cannot be increased as they may be beyond Sogolytics’s control or may require disproportionate effort.
3.3 GDPR Addendum. If You (Customer) or Your employees, agents, customers, recipients, survey participants, or any other party whose personal information You request Sogolytics to collect, store, transfer or process, is/are located in the European Economic Area or Switzerland (collectively "EEA"), or otherwise protected by the General Data Protection Regulation, You agree to the General Data Protection Regulation Addendum ("GDPR Addendum", incorporated herein by reference). The GDPR Addendum shall apply to the extent Customer Data includes Personal Data as defined in the GDPR Addendum. By transferring any such data to Sogolytics or requesting Sogolytics to collect or process any such data, you expressly agree to the GDPR Addendum. You assume sole responsibility for any activity that involves transfer of any such data to Sogolytics or any third party through use of any Service. You agree to indemnify and hold Sogolytics harmless against any claim, demand, suit, or proceeding made or brought against Sogolytics as a result of Your violation of this Section and/or the GDPR Addendum. To the extent Personal Data from the EEA are processed by Sogolytics, the Standard Contractual Clauses shall apply, as further set forth in the GDPR Addendum.
3.4 Customer Responsibilities. Customer will:
- be responsible for Users’ compliance with this Agreement and Order Form.
- be responsible for Customer’s conduct and the conduct of Users.
- be responsible for Customer’s handling of its own Customer Data.
- be responsible for communications undertaken by Customer or its Users with others through the Services.
- be responsible for the accuracy, quality, and legality of data regarding contact information of survey participants ("Participant List"), the means by which Customer acquired Participant List, Customer’s use of Participants List with the Services, and the interoperation of any Non-Sogolytics Applications with which Customer uses Services or Content.
- provide any information necessary to prove that Customer is authorized to send communications to the Participant List.
- use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and promptly, but in no case later than 48 hours of gaining such knowledge, notify Sogolytics of any such unauthorized access or use.
- be solely responsible for ensuring that the Customer’s account is not used by or on behalf of any third-party without explicit written permission from Sogolytics.
- be solely responsible for any activity occurring in Customer’s account except any conduct that is directly and solely attributable to Sogolytics without Customer’s authorization.
- use Services and Content only in accordance with this Agreement, Documentation, Order Form, and applicable laws and government regulations.
- be solely responsible for compliance with any requirements imposed by a Non-Sogolytics Application with which Customer uses Services or Content.
- be solely responsible for compliance with any state or federal laws applicable to Customer’s use of the Service.
- ensure that all necessary steps are taken to prevent linking survey responses obtained from anonymous or semi-anonymous surveys or intake methods with the identity of survey participants.
- provide true, accurate, and current information as requested by Sogolytics at any time, and promptly and regularly update Customer’s information to maintain its accuracy and completeness. Sogolytics reserves the right to suspend or terminate Your account and refuse any and all current or future use of the Service, in whole or in part, by You for providing any Customer information that is untrue, inaccurate, incomplete or not current.
- provide for Customer’s own access to the Internet and pay any fees or costs related to such access.
- be responsible for creating and administering surveys through the Site unless expressly agreed otherwise.
Any use of the Services in breach of the foregoing by Customer or Users that in Sogolytics’s judgment threatens the security, integrity, or availability of Sogolytics’s services, may result in Sogolytics’s immediate suspension of the Services; however Sogolytics will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.5 Usage Restrictions. Customer shall comply with the acceptable use requirements under the Anti-Spam Policy and shall not:
- make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation.
- sell, resell, license, sublicense, distribute, make available, rent, or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering.
- share an account with any third party, share login credentials of an account with any third party, or use any third party’s account to access the Service.
- use a single account on behalf of multiple third parties, including but not limited to Your clients, without a valid Consultant License specifically authorizing such use.
- share an account or share login credentials of an account between multiple people within the same organization.
- use a Service or Non-Sogolytics Application to store or transmit infringing, libelous, obscene, threatening, harassing, hate-oriented, defamatory, racist, illegal, or otherwise objectionable, unlawful, or tortious material.
- engage in any activity that violates any law, including, but not limited to the CAN SPAM Act, the Health Insurance Portability and Accountability Act, the Children's Online Privacy Protection Act, FERPA, or any third party right, including any intellectual property rights, privacy rights, or publicity rights of others.
- use a Service or Non-Sogolytics Application to store or transmit material in violation of third-party privacy rights or third-party intellectual property rights.
- use a Service or Non-Sogolytics Application to store or transmit Malicious Code.
- interfere with or disrupt the integrity or performance of any Service or third-party data contained therein.
- misuse Services by interfering with their normal operation or attempting to access them using a method other than through the interfaces and instructions provided by Sogolytics.
- attempt to gain unauthorized access to any Service or Content or its related systems or networks.
- attempt, permit, or undertake direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Sogolytics intellectual property except as permitted under this Agreement, an Order Form, or the Documentation.
- modify, copy, or create derivative works based on a Service or any part, feature, function, or user interface thereof.
- copy Content except as permitted herein or in an Order Form or the Documentation.
- frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentatio.
- except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
- use a Basic, Plus, Pro, or Premium package or subscription for any legal entity that is not a natural person or not classified as any of the following in the country of its registration: (i) Small and Midsize Business (SMB), (ii) Small and Midsize Enterprise (SME), or (iii) 501(c)(3) tax-exempt non-profit organization or its equivalent in the country of its registration.
- probe, scan, or test the vulnerability of any Sogolytics system or network without explicit prior written authorization by Sogolytics.
- 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. Sogolytics reserves the right to notify You of Your abusive or excessive usage to provide You with an opportunity to reduce such usage to a level acceptable to Sogolytics.
- send unsolicited surveys.
- promote or condone the sending of unsolicited email to individuals not affiliated with the Customer.
- harvest or collect any information about any third party, including, but not limited to, e-mail addresses, without consent of such third party.
- create false identities for the purpose of misleading any third party as to the identity of the sender of any message or to manipulate the origin of any communication or hide the identity of the Sender.
3.6 Removal of Content and Non-Sogolytics Applications. If Customer receives notice that Content or a Non-Sogolytics Application must be removed, modified, and/or disabled to avoid violating applicable law or third-party rights, Customer will promptly do so. If Customer does not take required action, or if in Sogolytics’s judgment continued violation is likely to reoccur, Sogolytics may disable the applicable Content, Service, and/or Non-Sogolytics Application. If requested by Sogolytics, Customer shall confirm such deletion and discontinuance of use in writing and Sogolytics shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Sogolytics is required by any third-party rights holder to remove Content or receives information that Content provided to Customer may violate applicable law or third-party rights, Sogolytics may discontinue Customer’s access to Content through the Services.
3.7 Service Retirement. Sogolytics may add, alter, or remove functionality from a Service at any time without prior notice. Sogolytics may limit, suspend, or discontinue a Service at its sole discretion. If Sogolytics discontinues a Service, We will give You reasonable advance notice to provide You with an opportunity to export a copy of Your data from that Service. Sogolytics may remove content from the Services at any time in its sole discretion, although We will endeavor to notify You before We do so if We believe that such an action would materially impact You and if We believe that such a notification is practicable under the circumstances.
3.8 New Services. Sogolytics may introduce new products and services to complement Our existing Services. If such new services are not included in Your existing Subscription, Sogolytics reserves the right and sole discretion to decide whether or not the new services will be made available to You, whether or not such new services will be made available to You as part of Your existing Subscription, and whether or not the availability of such new services shall be subject to payment of an additional charge by You at Your sole discretion. Customer may, at its sole discretion, choose to provide comments or feedback to Sogolytics. Sogolytics may, but shall have no obligation to, use the comments or feedback to improve Service(s) offered by Sogolytics.
4. NON-SOGOLYTICS PRODUCTS AND SERVICES
4.1 Non-Sogolytics Products and Services. Sogolytics or third parties may make available third-party products or services, including, for example, Non-Sogolytics Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-Sogolytics provider, product, or service is solely between Customer and the applicable Non-Sogolytics provider. Sogolytics does not warrant or support Non-Sogolytics Applications or other Non-Sogolytics products or services, whether or not they are designated by Sogolytics as "certified" or otherwise, unless expressly provided otherwise in an Order Form. Sogolytics is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Non-Sogolytics Application or its provider.
4.2 Integration with Non-Sogolytics Applications. The Service(s) may contain features designed to interoperate with Non-Sogolytics Applications. Sogolytics cannot guarantee the continued availability of such features, and may cease providing them without notice, without assigning any reason and without entitling Customer to any refund, credit, or other compensation. We may, for example and without limitation, cease offering such a feature if the provider of a Non-Sogolytics Application ceases to make the Non-Sogolytics Application available for interoperation with the corresponding features in a manner acceptable to Sogolytics.
5. FEES AND PAYMENT
5.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. Sogolytics may offer personalized support, customized tools, or other custom/non-standard work subject to the payment of additional charges. Unless specified otherwise, such additional charges are not included in the fees specified in Order Forms. Customer shall be liable to pay such additional charges as may be specified by Sogolytics prior to providing such personalized support, customized tools, or other custom/non-standard work.
5.2 Changes in Fees. Sogolytics may change the fees charged 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. Sogolytics will provide You with reasonable prior written notice of any change in fees to give You an opportunity to cancel Your subscription before the price change becomes effective.
5.3 Invoicing and Payment. Unless explicitly specified otherwise in an Order Form or unless the subscription is cancelled by the Customer, subscriptions under Online Agreement will be renewed automatically, and all fees will be deducted from the specified payment method automatically. Customer agrees to provide Sogolytics with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Sogolytics. If Customer provides credit card information to Sogolytics, unless specified otherwise in an Order Form, Customer authorizes Sogolytics to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the "Term of Purchased Subscriptions" section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Sogolytics will invoice Customer in advance and otherwise in accordance with the relevant Order Form. For subscriptions under Online Agreement, payment shall be deducted on the date of renewal. For subscriptions under Signed Agreement, unless otherwise stated in the Order Form, invoiced fees must be paid by Customer to Sogolytics within 15 days of the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Sogolytics and notifying Sogolytics of any changes to such information.
5.4 Overdue Charges. If any invoiced amount is not received by Sogolytics by the due date, then without limiting Sogolytics rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Sogolytics may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the "Invoicing and Payment" section above.
5.5 Chargeback. Initiating a chargeback for any fees or payment made to or deducted by Sogolytics shall constitute a violation of this Agreement. Sogolytics reserves the right to: (a) disable or delete Your account(s) and all associated data, (b) revoke Your licenses, (c) refuse to provide Services in future, (d) charge late interest at the rate of 1.5% of the amount per month, or the maximum rate permitted by law, whichever is lower, (e) condition future subscription renewals and Order Forms on payment terms shorter than those specified in the "Invoicing and Payment" section above, and / or (f) initiate appropriate legal action against You for violation of this clause.
5.6 Suspension of Service. If any charge owing by Customer under this agreement for services is 10 days or more overdue, Sogolytics may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Sogolytics will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the "Manner of Giving Notice" section below for billing notices, before suspending services to Customer.
5.7 Reactivation Charges. Any account that has been terminated, suspended or any subscription that has been cancelled under the terms of this Agreement, may be reactivated by the Customer and Sogolytics on mutually agreeable terms upon payment of such charges and fees as may be determined by Sogolytics in its sole discretion.
5.8 Payment Disputes. If Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute, Sogolytics will not exercise its rights under the "Overdue Charges", "Chargeback", or "Suspension of Service" sections above for up to 30 days or such additional period as agreed by Sogolytics in writing.
5.9 Taxes. Sogolytics's fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, goods and service, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Sogolytics has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Sogolytics will invoice Customer and Customer will pay that amount unless Customer provides Sogolytics with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Sogolytics is solely responsible for taxes assessable against it based on its income, property, and employees.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Sogolytics, its Affiliates, its licensors and content providers reserve all of their rights, titles, and interests in and to the Services, Content, logos, templates, tutorials, sample surveys, sample questions and questionnaires, and other materials created by them, including all of their related intellectual property rights. Sogolytics owns all right, title, and interest in and to Sogolytics’s registered and unregistered, domestic and foreign trademarks, service marks, trademark applications, service mark applications, trade names, patents, patent applications, copyrights, copyright applications, discoveries, know-how and trade secrets of and relating to the Services, including any and all survey templates created by Sogolytics. You agree not to remove and to always include any and all copyright and intellectual property notices attached to intellectual property owned by or otherwise licensed to You by Sogolytics, its Affiliates, its licensors or its content providers, including all templates. No one may copy, reproduce, transmit, post, distribute or create, derivative works from the Services without express, prior written authorization from Sogolytics. No rights are granted to Customers or Users hereunder other than as expressly set forth herein.
6.2 Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement, and the Documentation.
6.3 License by Customer to Sogolytics. Customer grants Sogolytics, its Affiliates, and applicable contractors a worldwide, royalty-free, non-exclusive, limited license to host, copy, use, transmit, display, and distribute any intellectual property as necessary to perform the obligations under this Agreement, including but not limited to Non-Sogolytics Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for Sogolytics to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-Sogolytics Application with a Service, Customer grants Sogolytics permission to allow the Non-Sogolytics Application and its provider to access Customer Data and information about Customer’s usage of the Non-Sogolytics Application as appropriate for the interoperation of that Non-Sogolytics Application with the Service. Subject to the limited licenses granted herein, acquires no right, title, or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-Sogolytics Application, or such program code. Unless otherwise agreed upon by both parties in writing, You grant Sogolytics a non-exclusive, irrevocable, royalty-free right to use Your company name and logo in Sogolytics marketing materials and Client lists, including on the Sogolytics website, anytime during or up to three (3) years after termination of Client’s use of the Services, without additional notice.
6.4 License by Customer to Use Feedback. Customer grants to Sogolytics, its Affiliates, assignees, subsidiaries, and successors a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Sogolytics’s or its Affiliates’ services without any obligations to Customer including but not limited to acknowledgement, limitation, or notice of any kind.
6.5 Federal Government End Use Provisions. Sogolytics provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of "commercial items," as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense Customers, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
6.6 Customers Retain Ownership of Customer Data. Customer owns all right, title, and interest in its own intellectual property including its trademarks, questionnaires independently developed by Customer using the Services without any consultation with Sogolytics, provided they are not derived from Sogolytics’s Intellectual Property, as well as survey participant responses collected through the Services.
7.1 Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes surveys designed and developed by Customer, contact lists, survey responses, and any other Customer Data. Confidential Information of Sogolytics includes the Services and Content, and the terms and conditions of this Agreement, and all Order Forms (including pricing), any software or documentation related to the Services, Sogolytics sample questions and templates, trade secrets, technical know-how, inventions, materials, product development plans, marketing plans, customer lists and email addresses, the know-how, proprietary strategy on communications, reports, and findings. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this "Confidentiality" section apply to Confidential Information exchanged between the parties under this Agreement and in connection with the evaluation of additional Sogolytics services.
7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsels and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsels, or accountants will remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with this "Confidentiality" section. Notwithstanding the foregoing, Sogolytics may disclose: (a) the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Sogolytics Application Provider to the extent necessary to perform Sogolytics’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein; and (b) information in accordance with Section 6.3 ("License by Customer to Sogolytics") above.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, including but not limited to obligations under a local, state or federal law, provided that the Receiving Party gives: (a) prior notice of the compelled disclosure to the Disclosing Party (to the extent legally permitted); and (b) reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 Sogolytics Warranties. Sogolytics warrants that during an applicable subscription term (a) this Agreement, the Order Forms, and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) Sogolytics will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, (d) the Services shall be provided in a workmanlike manner that conforms to the relevant, prevailing industry standards, and (e) subject to the "Integration with Non-Sogolytics Applications" section above, Sogolytics will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the "Termination" and "Refund or Payment upon Termination" sections below.
8.3 Warranty Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT, FREE SERVICES, FREE TRIALS, AND BETA SERVICES ARE PROVIDED "AS IS," AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. SOGOLYTICS EXPRESSLY DISCLAIMS THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, ERROR-FREE, ACCURATE, OR RELIABLE.
9.1 Claims Brought Against Customer.
- Sogolytics will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of Service(s) infringes or misappropriates a patent claim, copyright, or trade secret right. Sogolytics will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement Sogolytics enters into) with respect to these claims.
- Sogolytics’ obligations under this section "Indemnification by Sogolytics" will not apply if the claim results from (i) Customer’s breach of this Agreement, (ii) use of Service(s) in conjunction with any product or service not provided by Sogolytics, or (iii) use of Service(s) provided for no fee including but not limited to Free Service(s) and Beta Service(s).
- In the event a claim is made or likely to be made, Sogolytics may (i) procure for Customer the right to continue using the Service under the terms of the Agreement, or (ii) replace or modify the Service to be non-infringing without a material decrease in functionality. If these options are not commercially reasonably available, Sogolytics or Customer may terminate Customer’s subscription to the affected Cloud Service upon written notice to the other party.
9.2 Claims Brought Against Sogolytics. Customer will defend Sogolytics against claims brought against Sogolytics and its Affiliates and subcontractors by any third party related to Customer Data or use of Service(s) by Customer. Customer will indemnify Sogolytics against all damages finally awarded against Sogolytics and its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
9.3 Third Party Claim Procedure.
- The party against whom a third party claim is brought will notify the other party in a timely manner in writing of any claim, reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defense.
- The party that is obligated to defend a claim will have the right to fully control the defense.
- Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
9.4 Exclusive Remedy. This "Indemnification" section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, OR $5000, WHICHEVER IS LOWER. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT" SECTION ABOVE. SOGOLYTICS’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT IS LIMITED TO DIRECT MONETARY DAMAGES. IN NO EVENT WILL SOGOLYTICS BE LIABLE FOR PROVIDING SUBSTITUTE SERVICES.
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL SOGOLYTICS, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS, OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICES (OR ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICES): (1) FOR ANY LOST PROFITS, REVENUES, DATA, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, (2) FOR AN INABILITY TO USE THE SERVICE, OR (3) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), EVEN IF SOGOLYTICS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF THE ABOVE OR IF SOGOLYTICS'S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS IN ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.3 Essential Basis. CUSTOMER ACKNOWLEDGES THAT SOGOLYTICS HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY AND THE SAME FORM AN ESSENTIAL BASIS FOR THE BARGAIN BETWEEN THE PARTIES.
11. TERM AND TERMINATION
11.1 Term of Agreement.This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated. Unless specified otherwise in the Order Form, subscriptions purchased renew automatically until the subscription is cancelled by the Customer or this Agreement is terminated by either party.
11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party terminates this Agreement and/or the subscription or Service purchased under this Agreement in accordance with "Cancellation of Renewal", "Termination by Customer", or "Termination by Sogolytics" below. In case of a Signed Agreement, the per-unit pricing during any renewal term may be increased by Sogolytics in its own discretion by up to 7% above the applicable pricing in the prior term without advance notice. If the per-unit pricing is increased by Sogolytics by more than 7% above the applicable pricing in the prior term, Sogolytics shall provide Customer notice of the different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, promotional or one-time priced subscriptions shall not be renewed at the promotional or one-time price, but shall instead be renewed at Sogolytics’s applicable list price in effect at the time of the renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in repricing at renewal without regard to the prior term’s per-unit pricing.
11.3 Cancellation of Renewal. Customer or Sogolytics may prevent renewal of any subscription and/or Service(s) purchased under this Agreement without cause (i) in case of a Signed Agreement, by either party by providing a written notice of cancellation of renewal to the other party at least 30 days prior to the date of renewal of the subscription; or (ii) in case of an Online Agreement: (a) by Customer by using the "cancel" button or its equivalent in the customer’s account at least 1 working day prior to the date of renewal of the subscription, or (b) by Sogolytics by providing a notice of at least 1 working day to the Customer through the website or Service interface, or by means of a written notice to Customer.
11.4 Effect of Cancellation of Renewal. Upon cancellation of renewal of a subscription under this Agreement, Customer shall be entitled to continue using Service(s) as per Customer’s subscription until the end of the current term of subscription. Customer shall be liable to pay to Sogolytics any unpaid fees, dues, or amounts. In no circumstance shall Sogolytics be liable to provide any refund to Customer for cancellation of renewal by either party.
11.5 Termination by Customer. Customer may terminate this Agreement for cause (a) upon 30 days written notice to Sogolytics of a material breach if such breach remains uncured at the expiration of such period, or (b) immediately upon sending a written notice if Sogolytics becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. For the purpose of this clause, written notice must be sent to firstname.lastname@example.org with the subject line "Notice of Termination of Agreement".
11.6 Termination by Sogolytics. Sogolytics may terminate this Agreement and/or subscription(s) or Service(s) purchased under this Agreement for cause (a) upon 30 days written notice to Customer of a material breach if such breach remains uncured at the expiration of such period, or (b) immediately upon sending a written notice if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, or (c) immediately and without notice for failure to make timely payment, or (d) upon 30 days written notice to Customer without assigning any reason.
11.7 Refund or Payment upon Termination. If this Agreement is terminated by Customer or Sogolytics in accordance with "Termination by Customer" or "Termination by Sogolytics" above, then Sogolytics shall refund to Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination on a pro-rated basis. In no circumstance shall Sogolytics be liable to refund any amount to Customer for termination of this Agreement or any Service by Customer except if such termination has been done by Customer or Sogolytics in accordance with "Termination by Customer" or "Termination by Sogolytics" above. Upon termination of this Agreement by either party, Customer shall pay to Sogolytics any unpaid fees, dues, or amounts for Service(s) that have been provided by Sogolytics prior to the effective date of termination of the Agreement or Service, regardless of whether such Service(s) were used by Customer, regardless of which party terminated the Agreement or Service, and regardless of the reason for termination of the Agreement or Service.
11.8 Surviving Provisions. The sections titled "Beta Services", "Free Trial", "Free Services," "Fees and Payment," "Proprietary Rights and Licenses," "Confidentiality," "Protection of Customer Data", "Representations and Disclaimers," "Indemnification," "Limitation of Liability," "Effect of Cancellation of Renewal", "Refund or Payment upon Termination," "Removal of Content and Non-Sogolytics Applications", "Surviving Provisions", and "General Provisions" will survive any termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1 Export Compliance. The Services, Content, other Sogolytics technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Sogolytics and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.
12.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Sogolytics and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7 Force Majeure. The parties understand that there may be an occurrence of an event or effect that cannot be reasonably anticipated or controlled, which even by the exercise of reasonable diligence cannot prevent non-performance, and in particular, performance of the Services. These occurrences and events include, but are not limited to: acts of God; acts of government; acts of war; acts of public enemies; acts of terror; strikes or other labor problems; natural disaster; floods; fires; earthquakes; epidemic; pandemic; civil unrest; riots; explosions; outages; general Internet brown-outs or black-outs or shortage of bandwidth; hardware failures; hacking, denial of service, or ransomware attacks; actions of the elements; or other similar causes beyond the control of Customer or Sogolytics in the performance of this Agreement. Upon the occurrence of such event or effect, the parties agree to excuse performance under this Agreement and not hold the other liable for the delay in or failure of performance under this Agreement. Any such delay in or failure of performance shall not constitute default or give rise to any liability for damages.
12.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.10 Ability to Accept Terms of Service. The Service is not intended for children under 16 years of age. You affirm that You are more than 16 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. If You are under 16 years of age, please do not use the Service. Please contact us immediately if You have used our Service and are under 16 years of age or if You are the legal guardian of someone under 16 years of age who has used our Service.
12.11 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Sogolytics will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
12.12 Recovery. In the event Sogolytics must initiate mediation, arbitration, litigation, or otherwise become a party to any other action at law or other proceeding against the Customer or related to Customer to enforce any of the terms of this Agreement, or by reason of any breach or default, Sogolytics shall in any such action or proceeding be entitled to recover from Customer all costs and reasonable attorneys’ fees it incurred.
12.13 Choice of Law / Choice of Forum. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its own or other conflict of law principles. The parties shall use good faith and all reasonable efforts to resolve disputes arising from or relating to this Agreement by negotiating with each other first. Any disputes unresolved by good faith resolution attempts must then be brought in a court of competent jurisdiction in Fairfax County, Virginia. Complete details such as Sogolytics entity entering into this Agreement, the address to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the court that has jurisdiction over any such dispute or lawsuit is as follows:
A Commonwealth of Virginia corporation
|Sogolytics 2291 Wood Oak Drive, Suite 300|
Herndon, VA 20171. U. S. A, Attn: CRO
|Fairfax County, Virginia,|
and controlling United States Federal Law
12.14 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery to the party or to an executive officer of the party to whom the same is directed, (b) the second business day after mailing if sent by registered or certified mail, postage and charges prepaid, addressed to the party’s address provided in the Order Form, or (c) except for notices of termination of a Signed Agreement or an indemnifiable claim ("Legal Notices"), which shall clearly be identifiable as Legal Notices, the day of sending by email if sent without receipt of any delivery failure notice. For Signed Agreement, billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer and all other notices to Customer will be addressed to the relevant Services system administrator designated by Customer. Unless stated otherwise in the response, any written, electronic or in paper, response to the applicable notice shall be deemed a waiver of any dispute relating to the adequacy of such notice.
12.15 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
12.16 No Agency. For the avoidance of doubt, Sogolytics is entering into this Agreement as principal and not as agent for any other Sogolytics.com company. Subject to any permitted Assignment under the "Assignment" section above, the obligations owed by Sogolytics under this Agreement shall be owed to Customer solely by Sogolytics and the obligations owed by Customer under this Agreement shall be owed solely to Sogolytics.