On Demand Terms of Service
Last updated July 24, 2015
Please read these Terms of Service very carefully. These Terms of Service control all GeoPoll on-demand services, products and order forms. By signing your On-Demand Order Form, you are acknowledging that you are aware of, have read, and agree to be bound by the below Terms of Service.
You may not use the GeoPoll or MAI, as defined below, services and On-Demand Services or Products and may not accept the Terms if (a) you are not of legal age to form a binding contract with MAI, or (b) you do not have the necessary authority to enter into agreements on behalf of your organization.
These On-Demand Terms of Service (“Terms of Service”) govern the On-Demand Work Order (“Work Order”). If the Work Order conflicts with these Terms of Service, these Terms of Service will take precedence, unless the conflicting term of the Work Order expressly states that it is intended to supersede these Terms of Service. The Work Order, together with these Services Terms of Service, are the “On-Demand Services Agreement.” Mobile Accord, Inc. (hereinafter, “MAI”) and the Company identified on the Work Order (“Client”) are each referred to as a “Party” and collectively as the “Parties”.
- GeoPoll Service Specifications: MAI is a mobile telecommunications platform services company that uses a proprietary technology, referred to as “GeoPoll”, to locate and survey people throughout the world using the mobile phone (“Services”). Client hereby engages MAI during the Term to administer one or more surveys using MAI’s GeoPoll platform (“Surveys”). The data collected from the Surveys shall be referred to as “Survey Data”.
- GeoPoll Ordering Process: The Parties may mutually agree upon additional Work Orders that will become incorporated into this Agreement upon acceptance and signature by both parties.
- Fees: In consideration for the Fees (“Fees”) set forth in the applicable Work Order, MAI shall provide Client with the services and deliverables as described in the Work Order. All such Fees are in U.S. Dollars, guaranteed, nonrefundable and not subject to set off by Client. In the event of late or nonpayment, MAI reserves the right to suspend the provision of all services until such time as any outstanding amount due is received by MAI. Fees shall be paid as specified in the Work Order. If no payment schedule is specified, fifty percent (50%) of any Fees are due upon execution of the Work Order and thereafter paid within fifteen (15) days of the date of MAI’s invoice. MAI may assess interest on any Fees or other amounts owing to MAI that remain unpaid when such become due at a rate equal to the greater of (i) 2% per month, compounded monthly, or (ii) the maximum rate allowable under applicable law (such higher amount, the “Interest Rate”), from the date the payment was due until the date MAI receives the payment.
- Survey Questions and Submission Process: Client or, at Client’s option, MAI shall prepare the questions for each Survey and all other aspects of such Survey. Regardless of what party prepares the questions for each Survey, MAI and/or the applicable wireless carriers shall approve all such questions in advance in their sole discretion. All Survey questions prepared by Client shall be submitted to MAI at least fourteen (14) days prior to the planned launch date of the applicable Survey, unless additional time for review is required by a wireless carrier. If any question is declined by either MAI or a wireless carrier, MAI will provide an explanation of the decline and provide Client an opportunity to submit an alternate question in accordance with the above timelines.
- Term: Unless terminated in accordance with the Termination sections below, this Agreement shall become effective on the Effective Date, as set forth in the Work Order, and unless otherwise specified, shall remain in full force and effect for a period of twelve (12) months (“Term”).
- For Convenience. This Agreement will continue in full force and effect until terminated by either Party by providing ninety (90) days’ notice of its intent to terminate.
- For Breach. In addition to all other available remedies at law or in equity, either Party may terminate this Agreement immediately upon notice to the other Party in the event the other Party materially breaches this Agreement and such breaching Party does not cure such breach within thirty (30) days after its receipt of notice of such breach from the non-breaching Party. For the avoidance of doubt, such material breach may include Client’s nonpayment.
- Insolvency. Either Party may immediately terminate this Agreement if the other Party (a) becomes or is declared insolvent or bankrupt; (b) is the subject of any proceeding related to its liquidation or insolvency (whether voluntarily or involuntarily) which is not dismissed within ninety (90) days; (c) makes an assignment for the benefit of creditors; (d) experiences a material adverse change in financial condition which may reasonably be expected to affect its ability to perform; or (e) fails to comply with a written request for reasonable assurances within ten (10) Business Days.
- Effect of Termination: Upon the termination of this Agreement for any reason, all rights and obligations of the Parties under this Agreement shall be extinguished, except that: (i) all accrued payment obligations (if any) hereunder shall survive such termination or expiration and shall be due and paid in accordance with the payment terms set forth herein; and (ii) the rights and obligations of the Parties under those sections which by their meaning the Parties intend them to endure, shall survive. In the event of any termination of the Agreement, Client will cease using the Services, and each Party shall return to the other Party or destroy and certify the destruction of any and all of the other Party’s Confidential Information.
- Confidentiality: Each Party (the “Receiving Party“) undertakes to retain in confidence all non- public information, technology, materials and know-how of the other Party disclosed or acquired by the Receiving Party pursuant to or in connection with this Agreement which is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information“). Neither Party shall use any Confidential Information with respect to which it is the Receiving Party for any purpose other than to carry out the activities contemplated by this Agreement. Each Party agrees to use commercially reasonable efforts to protect Confidential Information of the other Party, and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. Each Party shall also notify the other promptly in writing in the event such Party learns of any unauthorized use or disclosure of any Confidential Information that it has received from the other Party, and will cooperate in good faith to remedy such occurrence to the extent reasonably possible. The restrictions set forth in this paragraph shall not apply to any information that: (i) was known by the Receiving Party (as established by documented and competent evidence) without obligation of confidentiality prior to disclosure thereof by the other Party; (ii) was in or entered the public domain through no fault of the Receiving Party; (iii) is disclosed to the Receiving Party by a third Party legally entitled to make such disclosure without violation of any obligation of confidentiality; (iv) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed) including without limitation with respect to the enforcement of the Agreement; or (v) is independently developed by the Receiving Party without reference to any Confidential Information of the other Party. Upon request of the other Party, each Party shall return to the other all materials, in any medium, which contain or reveal all or any part of any Confidential Information of the other Party. Each Party acknowledges that breach of this by such Party would result in irreparable harm to the other Party, for which money damages would be an insufficient remedy, and therefore that the other Party shall be entitled to seek injunctive relief to enforce the provisions of this clause.
- Survey Data: MAI shall retain all right, title and ownership in all data collected through the Survey responses and Survey Data. MAI hereby grants Client a royalty-free, sub-licensable right to access and use the Survey Data collected through the Services. Client represents and warrants that it shall not use any Survey Data in an illegal or improper manner, nor shall it resell, lease, license, or divulge the Survey Data without MAI’s express written consent. Additionally, Client shall provide MAI with written notice of any intent to sublet and the right to approve any such sublicensing terms and any agreement related to or governing the data subject to this Agreement. Where possible, Client shall identify that MAI and/or the GeoPoll Services were used to collect the Survey Data.
- Trademarks and Reservation of Rights: Client grants to MAI a limited, non-exclusive, royalty-free, non-transferable, non-sub licensable license, during the Term, to reproduce and display the Client’s trademarks to (i) identify Client as a “supported client” in a list of all supported clients on MAI’s HTML and/or WML websites, (ii) on other supported social media sites including but not limited to Twitter, Facebook, and the like, and (iii) in connection with MAI’s promotion of MAI’s services, including but not limited to the GeoPoll services. For the avoidance of doubt, MAI shall be entitled to maintain references to the Client made during the Term on its websites or other social media sites after the expiry or termination of this Agreement. Except as expressly set forth herein, nothing in this Agreement shall be deemed to transfer or license any rights in or ownership of the MAI trademarks to Client or the Client trademarks to MAI.
- Client Representations: Client represents, warrants and covenants during the Term that: (i) it is and will remain in good standing with the governmental authorities of the country where MAI will perform any Surveys on Client’s behalf; (ii) any questions in a Survey performed on its behalf will comply with applicable law, rules and regulations in the jurisdiction(s) where the Survey is to be performed ; (iii) it has obtained and will maintain during the Term any government permissions and authorizations required to ask the questions in any Survey performed as part of the Services; (iv) it shall not use any Data in an illegal or improper manner; (v) it shall abide by all applicable international, national, regional and local laws, rules and regulations that are now in effect or hereafter promulgated and in force during the Term in connection with any Survey (including the performance thereof) and its use of the Survey Data, including, without limitation, the Foreign Corrupt Practices Act (FCPA) and the Alien Tort Claim Act ) (collectively, the “Regulations”); and (vi) Client shall refrain from any action or omission which will cause MAI or any of its Representatives (as defined herein) to be in violation of any Regulations.
- MAI Indemnification and Limitation on Liability: MAI provides all Survey Data and services to Client on an “as is” basis and makes no express or implied warranties of any kind. Under no circumstances will MAI be liable to Client for any indirect, incidental, consequential, special, punitive, or exemplary damages (including lost profits, loss of revenue, lost data or lost business) arising from the subject matter of this Agreement, regardless of the type of claim, even if MAI has been advised of the possibility of such damages. Client shall indemnify and defend MAI for any claims, liabilities, damages, injuries or judgments related to this Agreement.
- Assignment: Neither party may assign any of its rights nor delegate any of its duties under this Agreement without the other Party’s prior consent, provided, however, that either Party may, without the other Party’s consent, assign this Agreement to an affiliate, or to a successor in interest as a result of a change of control, a sale of all or substantially all of its assets, or a merger, acquisition, public offering or other corporate reorganization.
- Governing Law: This Agreement shall be construed in accordance with and governed by the laws of the State of Colorado, USA. Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in Federal or state courts sitting in the County of Denver, Colorado.
- Equitable Relief: Other than as expressly stated in this Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party under this Agreement, at law or in equity. Client acknowledges that its breach of this Agreement may result in irreparable and continuing damage to MAI for which monetary damages may not be sufficient, and agrees that, in the event of any such breach, MAI shall be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, without the necessity of posting bond or other security, and such further relief as may be proper from a court of competent jurisdiction.
- Waiver: No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect.
- Force Majeure: If either Party is unable to perform any of its obligations under this Agreement because of unforeseen circumstances beyond such Party’s reasonable control, including acts of God, war, riot, embargoes, acts of civil or military authorities, fire, flood or earthquake (a “Force Majeure”), then such Party will be excused from performance of such obligation to the extent and for the duration of such prevention, restriction or delay. If an event of Force Majeure occurs and a Party is unable to perform for a period exceeding ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ prior notice.
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