Master Service Agreement
This is a legally binding contract between You and Suzy, Inc., which governs Your use of Our Services. Please make sure You read it, because it is important. By accepting this Agreement, either by clicking a box indicating Your acceptance or by executing this Agreement or an Order that references this Agreement, You agree to the terms of this Agreement. We’ve tried to make it as clear as possible, but We welcome Your feedback to email@example.com if You have suggestions or questions.
For purposes of this Agreement, the following definitions apply:
“Action(s)” means actions performed by Members.
“Agreement” means this Master Services Agreement.
“Deliverables” means any custom reports, research or output data developed by Us for You under this Agreement (excluding the Licensed IP, and any third-party materials or materials in the public domain).
“Fees” means the fees set forth in each Order.
“Licensed IP” means both Member Content and Our IP.
“Member(s)” means third-party individual members of the consumer facing survey website located at www.crowdtap.com.
“Member Content” means any survey results, drawings, sketches, artwork, presentations, writings, photographs, videos, films, recordings, digital materials, ideas, concepts, designs, text, plans, comments, enhancements and/or other materials or content posted by Members or gathered through Actions of Members pursuant to an Order.
“Order(s)” means Statements of Work, Licenses, Orders, or Order Forms.
“Our IP” means any of Our trademarks, logos and trade names.
“Platform” means the proprietary Suzy platform.
“Services” means the specific Actions and other services to be provided to You, including via the Platform.
“Term” means the term of any Services described in an Order.
"We," "Us," "Our" or “Suzy” means Suzy Inc.
“You,” “Your” or “Client” means the person accepting these terms, or, if applicable, the company or other legal entity for which you are accepting these terms.
“Your IP” means Your trademarks, logos, trade names and Your Materials.
“Your Materials” means all survey questions, concepts, products, samples, advertising, promotional and other materials supplied or specified by You or provided to Us or Members in connection with an Order.
2. Accepting these terms
Please read this Agreement before using the Services. If You do not agree to the terms of this Agreement, You may not register for the Services. If We make material changes to this Agreement, We’ll let You know either through the Platform or via email (at the email address you provide). If You do not agree to those changes, You may cancel Your account. If We do not hear from You within ten days, the revised Agreement will apply to You.
3. Provision of Services. Subject to Your compliance with this Agreement, We will provide You with access to the Platform, which allows You to interact with Members, and receive the benefit of Actions. The Services are set forth in the Order(s). We may introduce material changes to the Platform and the Actions set forth in an Order, including, but not limited to, modifying the number of Actions that You receive, provided that (i) any such material changes do not adversely affect the quality, price or function of the Actions and (ii) We keep You informed of any such changes.
4. Fees/Payment. You agree to pay Us the Fees specified in each Order. Fees specified include applicable sales tax to the extent that such tax applies. You agree to reimburse Us for any costs and expenses identified on the Order that are reasonably incurred in providing the Services set forth in this Agreement or otherwise approved by You in advance in writing. Any additional services not set forth in an Order will be invoiced separately by Us.
Fees due hereunder shall be paid according to the payment schedule set forth in the applicable Order. Any additional invoices submitted by Us to You pursuant to this Agreement shall be payable in accordance with the Order. In the event that any invoices are not paid when due, We reserve the right to (a) charge interest on overdue amounts in the amount of the lesser of (i) 1.5% per month or (ii) the maximum amount allowed by applicable law, and (b) suspend Your access to the Services, without liability and without limiting Our other rights hereunder, until overdue amounts are paid in full. You agree to reimburse Us for all costs (including reasonable attorneys’ fees) incurred in collecting late payments.
5. Representations, Warranties and Covenants.
5.1. Mutual Warranties. Each party represents and warrants that: (i) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized; (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations thereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
5.2. Our Warranties. We represent, warrant and covenant that: (i) the Services will be performed by qualified personnel in a workmanlike manner with the exercise of reasonable and due care in material accordance with any written specifications agreed to in the applicable Order; (ii) it owns all rights, title, and interest in and to the Platform, or that it has otherwise secured all necessary rights in the Platform to permit the access and use thereof as contemplated by this Agreement; and (iii) it shall comply with all federal, state, and local laws, rules and regulations applicable to the Services. We make no representations or warranties with respect to any Members or Member Content, except that We represent that Our agreements with Our Members permit Us to perform the Services, as well as grant the applicable licenses to You for the Member Content as set forth herein.
5.3. Your Warranties. You represent, warrant and covenant that (i) You shall strictly adhere to this Agreement, including the license and use of (A) the Platform and (B) the Member Content, including but not limited to any rights and restrictions thereto; (ii) You shall not rent, sell, license, lease or otherwise commercially exploit or make available the Platform or Member Content to any unauthorized user or otherwise use, modify, adapt, or combine the Platform, Deliverables or Member Content in an infringing or unauthorized manner; (iii) Your Materials will be accurate, substantiated, comply with all applicable laws and regulations and will not infringe upon or otherwise violate the rights of any third party; and (iv) You shall comply with all applicable federal, state, and local laws, rules and regulations. For clarity, Your Materials will be deemed Your materials and not Our materials.
6.1. Our Indemnification Requirements. We shall indemnify, defend and hold harmless You from and against any losses, liabilities, damages or expenses, including reasonable attorneys’ fees and expenses, (collectively, a “Loss”) arising from any claim by a third party relating to: (i) the Platform infringing a valid U.S. patent (issued before the Effective Date), or any copyright or trade secret of such third party; (ii) any violation by Us or our subcontractors of any applicable federal, state, or local law, rule, or regulation in Our provision of the Services to You; or (iii) any breach of Section 8 of this Agreement by US or Our subcontractors.
6.2. Your Indemnification Requirements. You shall indemnify, defend and hold harmless Us against any Loss arising from any claim by a third party relating to: (i) Our authorized use of Your Confidential Information; (ii) any violation by You of any applicable federal, state or local law, rule or regulation in performing Your obligations under this Agreement; (iii) any breach of Section 8 by You; (iv) any use of the Services by You not strictly in accordance with this Agreement or a relevant Order; and (v) Your products, samples or other materials provided to Members or the public in accordance with this Agreement.
6.3. Indemnification Procedure. The obligations of the indemnifying party hereunder are conditioned upon: (i) indemnified party’s delivery of written notice to the indemnifying party of any potential Loss promptly after the indemnified parties become aware of such potential Loss (provided, however, that any delay or failure to promptly notify the indemnifying party of a potential Loss shall only relieve the indemnifying party of its obligations to indemnify to the extent that the indemnifying party is materially prejudiced by such delay or failure); and (ii) reasonable and timely cooperation, information, and assistance in connection therewith. The indemnifying party will have sole control over the defense of any suit or action related to such a Loss. The indemnified party may participate in (but not control) the defense thereof at its sole cost and expense. The indemnifying party may settle a suit or action related to such Loss; however, the indemnifying party may not settle if such settlement would require a materially adverse act or admission by the indemnified party without the indemnified party’s written consent, which cannot be unreasonably withheld, conditioned, or delayed. The indemnifying party will not be liable for any settlement made without its prior written consent.
7. Limitations of Liability; Disclaimer of Warranties.
7.1. EXCEPT FOR ANY BREACH OF SECTION 8 (CONFIDENTIALITY) OR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 6 (INDEMNITIES), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY CONCERNING THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), FOR ANY (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, LOSS OF, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, OR (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS, AND GOODWILL.
7.2. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF APPLICABLE LAW OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO IT (IN THE CASE OF US) OR PAID AND PAYABLE BY IT (IN THE CASE OF YOU) HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3. THE LIMITATIONS IN SECTIONS 7.1 AND 7.2 ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY HEREIN PROVIDED THAT SUCH LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW.
7.4. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU FOR CONTENT SUPPLIED BY OR ACTIONS PERFORMED BY ANY MEMBER FOR OR WITH RESPECT TO YOU. YOU HEREBY ACKNOWLEDGE AND AGREE THAT MEMBERS ARE NOT OUR EMPLOYEES, AND THAT WE, WHILE CREATING, TRACKING AND MANAGING THE PLATFORM, SOLELY FACILITATE THE ENGAGEMENT OF MEMBERS FOR ACTIONS REQUESTED BY YOU AND DO NOT CONTROL, MONITOR, SUPERVISE OR REGULATE THE ACTIVITIES OF MEMBERS. YOU ACKNOWLEDGE AND AGREE THAT WE ARE IN NO WAY LIABLE FOR THE ACTS AND/OR OMISSIONS OF ANY MEMBERS, AND HEREBY RELEASE AND HOLD US HARMLESS FROM ANY AND ALL CLAIMS ARISING OUT OF ANY MEMBER’S ACTS OR OMISSIONS, REGARDLESS OF WHETHER WILLFUL OR NEGLIGENT.
7.5. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, WITH RESPECT TO ANY MATTER RELATING TO AN ORDER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. MOREOVER, IT IS EXPRESSLY UNDERSTOOD BY YOU THAT WE DO NOT WARRANT THAT THE PLATFORM, SERVICES OR DELIVERABLES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY SPECIFIC RESULTS; THAT TRANSMISSION OF DATA OVER THE INTERNET, OR OPERATION OF THE SERVICES OR THE PLATFORM, WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE; OR THAT ALL ERRORS WHICH MAY BE CONTAINED IN THE PLATFORM, SERVICES OR DELIVERABLES CAN OR WILL BE FIXED.
8. Confidentiality. “Confidential Information” means all information, including data, technology, prices, samples and specimens relating to the disclosing party (“Disclosing Party”) and its products, product concepts, technologies, businesses, financial, clinical or regulatory affairs, Your segmentation criteria, manufacturing processes or procedures or those of any third party from whom Disclosing Party receives information on a confidential basis, whether written, graphic or oral, furnished to the receiving party (“Receiving Party”) by or on behalf of Disclosing Party, either directly or indirectly, or obtained or observed by Receiving Party while performing hereunder, except information that is: (a) now in the public domain or subsequently enters the public domain without fault of Receiving Party; (b) presently known by Receiving Party from Receiving Party’s own sources as evidenced by Receiving Party’s prior written records; (c) received by Receiving Party from a third party not under any obligation to keep such information confidential; (d) independently developed by Receiving Party without access or reference to Disclosing Party’s Confidential Information; and (e) released from confidential treatment by written consent of Disclosing Party.
Except as required in accordance with this Agreement, Receiving Party agrees not to disclose or use for any purpose any Confidential Information without the prior written consent of Disclosing Party, to be given or withheld in Disclosing Party’s absolute discretion. Receiving Party shall take all necessary and reasonable precautions to prevent the disclosure of Confidential Information to any unauthorized third parties. Notwithstanding the foregoing, Confidential Information may be disclosed to the extent required by applicable laws or regulations or as ordered by a court or other regulatory body having competent jurisdiction, provided that Receiving Party uses its best efforts to limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice of such disclosure to Disclosing Party.
Receiving Party acknowledges that the use or disclosure of Confidential Information without Disclosing Party’s express written permission may cause Disclosing Party irreparable harm and that any material breach or threatened material breach of this Agreement by Receiving Party will entitle Disclosing Party to seek injunctive relief and reasonable attorneys’ fees, in addition to any other legal remedies available to it.
Notwithstanding anything to the contrary, You acknowledge that if You share or direct Us to share information with Members, We shall not be liable for Members’ failure to maintain the confidentiality of such information.
9. Intellectual Property.
9.1. Licensed Intellectual Property and Content. Subject to Your compliance with this Agreement, We grant You a royalty-free, non-transferable, non-exclusive license: (i) to use the Platform and the Licensed IP during the applicable Term solely for purposes of this Agreement; and (ii) to use the Member Content in perpetuity for advertising, promoting and publicizing You and Your products and services. You acknowledge and agree that as between the parties, We retain all right, title, and interest in and to the Licensed IP. Nothing contained herein shall constitute an assignment of such rights or grant You any title or ownership therein. You agree that You will not contest Our ownership of such rights, challenge the validity of such rights, or take any action in derogation of such rights. You shall not register the Licensed IP in any forum or in any jurisdiction and We shall retain the exclusive right to apply for and obtain registrations for the Licensed IP throughout the world.
9.2. Restrictions. Except as expressly permitted herein, You shall not directly or indirectly (a) use the Licensed IP or any Confidential Information of Ours to create or enable a third party to create any software, product or service competitive to the Platform or Services; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of the Platform; (c) copy, alter, modify, or create derivative works of the Platform, Licensed IP or any Confidential Information of Ours, provided that You may copy Member Content in connection with use under the license granted above and may modify such Member Content to the extent reasonably required to accommodate the channel in which it is used, as long as such modification does not distort or change the meaning of such Member Content; or (d) otherwise use the Platform, Licensed IP or any Confidential Information in any way that violates this Agreement.
9.3. Data and Reports. To the extent We agrees to develop any Deliverables specifically for You as identified in the Order We hereby agree that all such Deliverables shall be deemed “works made for hire” for the benefit of You, and without limiting the foregoing, except with respect to third-party materials within the Deliverables (if any), hereby assigns to You all right, title, and interest in and to such Deliverables; provided that You shall not resell such Deliverables and shall provide attribution to Us when You re-use such materials. We agree to cooperate with You at Your expense to perfect the ownership of any such Deliverables and hereby waive all moral or other rights in and to such Deliverables once assigned to You.
9.4. License from You. You grant Us a royalty-free, non-transferable, non-exclusive license to use Your IP during the applicable Term solely for the purposes of Us providing the Services hereunder. You retain all right, title, and interest in and to Your IP. Nothing contained herein shall constitute an assignment of such rights or grant to Us any right, title or interest therein. We agree that We will not contest Your ownership of such rights, challenge the validity of such rights, or take any action in derogation of such rights. We shall not register Your IP in any forum or in any jurisdiction and You shall retain the exclusive right to apply for and obtain registrations for the Your IP throughout the world.
10. Term and Termination; Survival.
10.1. Term. This Agreement shall commence upon submission of a valid Order through www.suzy.com (the “Effective Date”) and, unless earlier terminated as provided herein, shall continue until all Orders entered pursuant to this Agreement have terminated or expired.
10.2. Termination. This Agreement and any Order may be earlier terminated by either party (i) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days after receiving written notice of such breach from the other party (10 days in the case of nonpayment by You), or (ii) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
10.3. Survival. Upon expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations accrued prior to the effective date of termination (including without limitation, payment obligations shall survive, (b) the license granted in Section 9.1(ii) of this agreement shall survive termination unless this Agreement is terminated by Us pursuant to Section 10.2(i), and (c) the provisions of Sections 4-10, 12 and 14-20 of this Agreement shall survive termination. If this Agreement is terminated early by You pursuant to Section 10.2(i) above, We will refund to You a pro-rata amount of any pre-paid Fees for the remaining portion of the then-current Term.
11. Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, successors and permitted assigns. Neither party may assign its rights under this Agreement or any Order without the prior written consent of other party, which may not be unreasonably withheld. Notwithstanding the foregoing, each party may assign or otherwise transfer this Agreement to a successor in connection with the sale of all or substantially all of its business or assets to which this Agreement relates.
12. Disputes. All claims or disputes between You and Us arising from or relating to this Agreement shall be mutually resolved, if possible, through good faith mediation between the parties. In the event no resolution occurs within sixty (60) days of good faith mediation, the parties may exercise any dispute resolution mechanism available at law.
13. Force Majeure. Except as otherwise provided herein, neither party shall be liable or deemed in default for failure to perform any duty or obligation hereunder where such failure has been occasioned by any act of God, fire, strike, third-party hardware or software failure, third-party misuse of websites, communication failure, theft, denial of service attacks, unauthorized destruction of or access to Our records and services, cyber-attacks, cyber terrorism, inevitable accidents, war or any other cause outside the reasonable control of that party and occurring without its fault or negligence. The party whose performance has been so interrupted shall give the other party notice of the interruption and cause thereof, and shall use every reasonable means to resume full performance as soon as possible.
14. Publicity. You agree that We may use Your name and trademarks in any news release, public announcement, advertisement, client list or other form of publicity, provided We obtain prior approval from You, such approval not to be unreasonably withheld.
15. Notice and Delivery. Under this Agreement, if a party is required or permitted to deliver or submit written notice to the other, such delivery shall be made: (i) to You via the email address You provided, or (ii) to Us via email at firstname.lastname@example.org.
16. Relationship of Parties. The parties intend to act and perform as independent contractors. This Agreement is not intended to create a partnership, joint venture, agency or employment relationship between the parties or between a party and the employees, agents or independent contractors of the other party. Each party is and will remain responsible for its respective employees and agents and will make no claim against the other for compensation, vacation pay, sick leave, retirement benefits, social security benefits, workers’ compensation, disability or unemployment insurance benefits or employee benefits of any kind. You shall be responsible for any tax reporting required as a result of the value of Your samples distributed to individual Members.
17. Waiver. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision hereof, or to exercise any right hereunder, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance.
18. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, without reference to its principles of conflicts of law. The parties consent to the exclusive jurisdiction of the federal and state courts located within New York County, New York.
19. Entire Agreement. This Agreement and each Order constitute the entire agreement between the parties with respect to the subject matter hereof, and this Agreement or any Order may only be amended in a writing signed by both parties. In the event of any conflict between (i) this Agreement and an Order, the Order shall control or (ii) this Agreement and any other document, this Agreement shall control.
20. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provision.
Last Updated: April 29, 2019