Welcome to the PureSpectrum Marketplace where Buyers and Suppliers can connect to more efficiently complete online Sample transactions.
THIS AGREEMENT GOVERNS YOUR USE OF THE PURESPECTRUM SERVICES AND ANY TRANSACTIONS WITH SUPPLIERS THAT YOU FIRST CONNECT WITH VIA THE PURESPECTRUM SERVICES. YOU AND THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT CONCLUDE THIS AGREEMENT WITH US WHEN YOU USE THE PURESPECTRUM SERVICES AND WHEN YOU EXPRESSLY ACCEPT THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT. YOU INCUR THE RIGHTS AND OBLIGATIONS OF A BUYER WHEN WE GENERATE USER LOGIN CREDENTIALS FOR YOU. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS ON THE ORDER FORM.
This Agreement is between You and PureSpectrum (each, a “Party,” collectively, the “Parties”) and constitutes the entire understanding related to the subject matter. PureSpectrum reserves the right, at any time and at Our sole discretion, to update, revise, supplement, and otherwise modify this Agreement or the PureSpectrum Services, and to impose new or additional rules, policies, terms, or conditions on Your use of the PureSpectrum Services. Before We make material changes to this Agreement, PureSpectrum will provide prior written notice, e.g., by electronic notice to Your Users via the PureSpectrum Marketplace or email. Any new features that augment or enhance the PureSpectrum Services, including the release of new APIs, tools, and resources, shall be subject to this Agreement. Continued use of the PureSpectrum Services after any such changes shall constitute Your consent to such changes; provided however, if the change has a material adverse impact on You and You do not agree to the change, You must notify PureSpectrum via email@example.com within 60 days after receiving notice of the change. If You notify PureSpectrum as required, then You will remain governed by the terms in effect immediately prior to the change until the end of the then current calendar year. If You continue to access and purchase Sample on the PureSpectrum Marketplace during the following calendar year, Your Use of the PureSpectrum Services and Your relationship with PureSpectrum will be renewed under the then-current terms and conditions for Buyers.
- ROLES AND RESPONSIBILITIES.
1.1 PureSpectrum’s Role. We provide Buyers and Suppliers with access to the PureSpectrum Services. Other than of PureSpectrum Marketplace Services, We do not buy, acquire, resell or otherwise provide Sample or other services that are ultimately provided by You. Buyers and Suppliers transact directly with each other by accessing and using PureSpectrum Marketplace. PureSpectrum does not accept any responsibility for the composition of Sample or for the legal and compliance obligations of Buyers or Suppliers related to Sample that is sold and procured by Suppliers and Buyers, respectively, when accessing and using PureSpectrum Marketplace. If Buyers fail or Suppliers fail to honor their contractual and legal obligations, PureSpectrum may assert its own rights against the party in breach. We will also make good faith attempts to resolve any disputes between a Buyer and a Supplier, but PureSpectrum does not accept responsibility or liability for Buyers’ or Suppliers’ obligations or liability to one another.
1.2 Buyers’ and Suppliers’ Obligations to PureSpectrum. As a Buyer, You must comply with all Applicable Laws and terms of this Agreement. Without limiting the generality of the foregoing, Suppliers must ensure that Respondents have received all required privacy notices and provided consent to processing and sharing of their personal data if and as required by Applicable Laws. Buyers must also ensure that Respondents have received all required privacy notices and provided consent to processing and sharing of their personal data once the survey begins off the PureSpectrum Marketplace if and as required by Applicable Laws.
1.3 Buyer’s Obligations to Suppliers. As described in Section 3 below, You must pay all fees to PureSpectrum when due and honor all obligations for Buyer Opportunities. For OTC Activity, We disclaim responsibility for evaluating and do not represent OTC Supplier’s compliance with any Applicable Laws.
1.4 Suppliers’ Obligations to Buyers. Suppliers must perform the obligations they accept with respect to particular Buyer Opportunities, and any terms specified by the Buyer.
1.5 Code of Conduct. PureSpectrum and Buyers are independent entities, but the business practices and actions of Buyers and Suppliers may significantly impact or reflect upon PureSpectrum’s reputation and its brands. Accordingly, PureSpectrum requires all Suppliers and Buyers and their Users to adhere to PureSpectrum’s Code of Conduct (“Code”) while conducting business on the PureSpectrum Marketplace, whether via PureSpectrum APIs or otherwise as Marketplace Activity or OTC Activity. You shall ensure that Your Users understand and comply with the Code through education, training, and awareness. The Code is available at: https://luc.id/code-of-conduct/.
- PURESPECTRUM SERVICES.
2.1 Availability of PureSpectrum Services. We will (i) allow You and Your Users access to the PureSpectrum Services pursuant to this Agreement during the applicable Subscription Term(s) once You have purchased the PureSpectrum Services via an Order Form; (ii) make technical support available to You, either through Our end user support team, at no additional charge; and (iii) use commercially reasonable efforts to make the online PureSpectrum Services available 24 hours a day, 7 days a week in the Public Cloud, except for: (a) downtime for Scheduled Maintenance or emergency maintenance, and (b) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, hurricane, civil unrest, act of terror, pandemic, viral or bacterial outbreak that affects access to facilities, strike or other labor problem, or Internet service provider failure or delay.
2.2 Scheduled Maintenance and Emergency Maintenance. PureSpectrum will provide You with at least 7 days advance written notice (e.g., electronic notice to Your Users either via the PureSpectrum Marketplace or email) of any scheduled maintenance, including the time and the length of the scheduled maintenance period (“Scheduled Maintenance”). If PureSpectrum deems it necessary to perform emergency maintenance on the PureSpectrum Marketplace (meaning any downtime that is not Scheduled Maintenance), PureSpectrum will use commercially reasonable efforts to provide You with 24-hour notice (e.g., electronic notice to Your Users either via the PureSpectrum Marketplace or email).
2.3 Security Measures. In order to protect the integrity and quality of Sample sold on the PureSpectrum Marketplace, PureSpectrum may, without liability, suspend or terminate any or all access to the PureSpectrum Services by revoking Your PureSpectrum Integration keys or restricting Your User login(s): (i) following a possible or actual security breach or cyber-attack on PureSpectrum or its Public Cloud, (ii) in order to protect PureSpectrum’s network in the Public Cloud, (iii) if required by a governmental entity or law enforcement agency, (iv) if You or a User or Respondent is causing technical or other problems to the Public Cloud, (v) upon the termination or expiration of a Subscription Term, or (vi) as otherwise allowed under this Agreement.
- BECOMING A BUYER ON THE PURESPECTRUM MARKETPLACE.
3.1 Access to PureSpectrum Marketplace as a Buyer. You will be granted access to the PureSpectrum Marketplace as a Buyer by executing an Order Form, agreeing to pay the Buyer Fees (as described below), and satisfying Our credit processes.
3.2 Sample Cost and Buyer Fees for Marketplace Activity. Using the PureSpectrum Marketplace, Buyers establish and agree upon distinct pricing with each Supplier participating in the Buyer Opportunity, which amounts are then aggregated as the total Sample Cost. In addition to the Sample Cost You pay to the Suppliers, You will be charged certain Buyer Fees by Us for each Buyer Opportunity, in accordance with the Order Form. For each Buyer Opportunity, the associated Buyer Fees are Confidential Information (as between You and PureSpectrum) and subject to the restrictions in Section 5.1 below.
3.3 Counterparty Transactions. In the case of Marketplace Activity, the PureSpectrum Marketplace is used to source Sample from a Supplier on behalf of a Buyer. PureSpectrum is counterparty to this transaction, which means on a monthly basis, PureSpectrum invoices the Buyer directly for cost of Sample sourced via the PureSpectrum Marketplace, and the Supplier invoices PureSpectrum directly for cost of Sample acquired via the PureSpectrum Marketplace. Buyer and Suppliers do not send or receive invoices from one another.
3.4 Over-the-Counter Activity. PureSpectrum is not counterparty to OTC Activity. The Supplier invoices the Buyer directly for cost of Sample delivered on the PureSpectrum Marketplace.
3.5 Invoicing. PureSpectrum will invoice Buyer monthly for (i) the Sample Cost of Marketplace Completes, and (ii) the Buyer Fees, including reconciliation adjustments and any related charges (as described in Section 3.6 below). All invoices will be submitted to the billing contact specified on the Order Form. The Buyer is responsible for notifying PureSpectrum when contact information needs to be updated. Buyer will be charged the Annual Fee upon execution of Order Form. The Annual Fee will be applied to Buyer Fees as incurred on the PureSpectrum Marketplace. In the event the Buyer Transaction Fees for the year exceed the Annual Fee, You will be charged incremental Buyer Transaction Fees monthly. The Annual Fee does not include the Buyer Commission, any supplier commissions, or any fees for premium services. The Annual Fee is waived for the Pilot Period.
3.6 Reconciliation Process. During a Reconciliation Window, Buyers have the right to adjust the status of transactions for both Marketplace Activity and OTC Activity from Completed to Terminated or from Terminated to Completed; provided however, such reconciliations shall be processed in accordance with the Code, the terms and conditions for Buyers on the PureSpectrum Marketplace, and the Reconciliation Report at: https://www.purespectrum.com/reconciliation-rules/. Reconciling transactions from Terminated or “In Screener/Drop” to Completed is necessary when technical errors prevent the recording of a Completed status on the PureSpectrum Marketplace. Buyers can make these adjustments for both Marketplace Activity and OTC Activity; provided however, related to Marketplace Activity PureSpectrum reserves the right to reject reconciliations in its sole reasonable judgment. AFTER THE RECONCILIATION WINDOW, YOU SHALL PAY FOR ALL SAMPLE COST AND ASSOCIATED BUYER FEES THAT HAVE NOT BEEN RECONCILED.
3.7 Payment Disputes. If You believe any invoice from Us is incorrect, You must contact PureSpectrum in writing within 30 days of invoice date setting forth the nature and amount of the requested correction directed to firstname.lastname@example.org. Otherwise, invoices are final. PureSpectrum has the right to recover any amounts overpaid to You.
- ACCESS TO AND USE OF PURESPECTRUM SERVICES.
4.1 Use of PureSpectrum Services. Subject to Your compliance with this Agreement, You may access and use the PureSpectrum Services solely for Your own business purposes or for Your own end clients during the applicable Subscription Term. We reserve the right to immediately terminate Your access to the PureSpectrum Services if We become aware You are in breach of any obligations under this Section 4. By using the PureSpectrum Services, You represent that You are not owned or controlled by nor acting on behalf of, any person or entity (i) located or organized in Cuba, Sudan, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or region that is subject to comprehensive U.S. economic sanctions, (ii) identified on the Specially Designated Nationals and Consolidated Sanctions List administered by the Office of Foreign Assets Control, U.S. Department of the Treasury, or (iii) with whom U.S. persons are otherwise prohibited from transacting.
4.2 Your Responsibilities. You will be responsible for (i) protecting Your Buyer Opportunity Data, (ii) using commercially reasonable efforts to prevent unauthorized access to or use of the PureSpectrum Services, and notifying Us of any unauthorized access or use, (iii) ensuring that You, Your Affiliates, and Your Users are accessing and using the PureSpectrum Services only in accordance with this Agreement, (iv) ensuring compliance with Applicable Laws related to concluding Buyer Opportunities off the PureSpectrum Marketplace, and (v) ensuring the security of links from the PureSpectrum Marketplace to the survey hosting platforms used by You and any links back to the PureSpectrum Marketplace. You are responsible for all activity conducted under Your User accounts and shall abide by all Applicable Laws in connection with Your use of the PureSpectrum Services, including those related to data privacy, international communications, COPPA and other age restrictions, the transmission of data, and data subject consents related to Your Buyer Opportunities.
4.3 Non-Circumvention. Neither You nor Your Users shall make any attempt to circumvent the intent or purpose of the PureSpectrum Marketplace by avoiding the payment of, or otherwise reducing, all or any portion of the payments, fees and charges payable to PureSpectrum (whether by simulation, side agreement, or understating the consideration due for Marketplace Completes and OTC Completes) or otherwise using the PureSpectrum Services inconsistent with supporting market, opinion, and social research. For clarity, Buyers are prohibited from using Buyer Opportunity Data to circumvent use of the PureSpectrum Marketplace with Suppliers.
4.4 Prohibited Uses. Your use of the PureSpectrum Services shall not include service bureau use, reselling, outsourcing, renting, distributing, sublicensing, or otherwise commercially exploiting or making available to any third party the PureSpectrum Services or PureSpectrum Technology. You shall not and shall not permit any User, Affiliate or third party to: (i) copy, translate, create derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the PureSpectrum Services or PureSpectrum Technology or any part thereof or otherwise attempt to discover any source code or modify the PureSpectrum Services or PureSpectrum Technology in any manner or form, (ii) “frame” or “mirror” the PureSpectrum Marketplace or PureSpectrum Technology on any other server or wireless or Internet-based device, (iii) access, penetrate, probe or scan the PureSpectrum Services or PureSpectrum Technology for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes, (iv) identify the Respondents or otherwise publish material on the PureSpectrum Marketplace that is intended to identify or otherwise collect personally identifiable information (“PII”) about or from the Respondents; (v) use the PureSpectrum Services to conclude fraudulent or otherwise illegal Buyer Opportunities; or (vi) use the PureSpectrum Services for the purpose of building a similar or competitive product or service, or, to the extent such a product or service already exists, to modify the product or service to incorporate features learned of from the PureSpectrum Services; it being understood that this prohibition shall not apply to content or features which can be proven by documentary evidence to have been developed independently of the PureSpectrum Services. You shall not and shall not permit any User, Affiliate or third party to use the PureSpectrum Services, Marketplace Data, Respondent Screening Data or PureSpectrum Technology: (a) in violation of, or which would cause another person to be in violation of Applicable Laws, including without limitation, COPPA, CalOPPA, and the U.S. economic sanctions administered by the Office of Foreign Assets Control, U.S. Department of the Treasury; (b) to publish, post, upload, send, store or otherwise transmit material that is unlawful, harassing, libelous, defamatory, threatening or otherwise in violation of any third party rights of privacy or other intellectual property rights; (c) to publish, post, upload, or otherwise transmit material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs that are intended to interfere with or otherwise disrupt the integrity or performance of the PureSpectrum Marketplace or Marketplace Data contained therein; or (d) in an attempt to gain unauthorized access to the PureSpectrum Marketplace or its related systems or networks.
5.1 Confidentiality and Non-Disclosure. During the Term of this Agreement, each Party may be furnishing certain information (“Disclosing Party”) to the other Party (“Recipient”), 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”). Specifically, Your Confidential Information includes (i) Buyer Opportunity Data, and (ii) the specific information mentioned in Section 6.2 below. Our Confidential Information includes the PureSpectrum Services and the PureSpectrum Technology. The Confidential Information of the Parties includes this Agreement and all Order Forms (including all Buyer Fees), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Disclosing Party. As between You and PureSpectrum, the Parties agree to hold Confidential Information in strict confidence and not to disclose such Confidential Information to any third parties. Confidential Information does not include any information that: (a) is, or later rightfully becomes, available to the public, (b) was in the Recipient’s rightful possession prior to receipt of the information from the Disclosing Party, (c) is later disclosed to the Recipient by a third party who has no obligation of confidentiality, (d) is independently developed by the Recipient without the use or benefit of the Confidential Information, or (e) is made available by You on the PureSpectrum Marketplace (except as provided above in Section 5.1(ii)). Notwithstanding anything to the contrary, PureSpectrum may disclose buyer identification as required by suppliers. This Agreement does not prohibit the disclosure of Confidential Information to the extent required by applicable law, regulation or court order. Each Party agrees to use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (at all times exercising at least a commercially reasonable degree of care) and not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by You or made available by You to the PureSpectrum Marketplace. Either Party may disclose Confidential Information on a need to know basis to its Affiliates, Users and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section 5.1.
5.2 Publicity. You grant Us the right to use Your company name and logo only to the extent necessary to perform the Services. PureSpectrum may only use Your name and logo with Your express written consent.
- PROPERTY RIGHTS AND RESPONSIBILITIES.
6.1 Ownership of PureSpectrum Technology. This Agreement contains a right to access and use the PureSpectrum Services during the Subscription Term, not a transfer of title to the PureSpectrum Technology. As between You and PureSpectrum, all Intellectual Property Rights in and to the Marketplace Data, PureSpectrum Marketplace and PureSpectrum Technology belong exclusively to PureSpectrum, Inc. and its licensors. You are granted no licenses of any kind to any Intellectual Property Rights of PureSpectrum. You shall not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the PureSpectrum Marketplace, unless otherwise agreed by PureSpectrum in writing. PureSpectrum reserves the right to make changes and updates to the functionality or performance of the PureSpectrum Services from time to time at its sole discretion. To the extent You or Your Users provide any suggestions, comments or other feedback related to the PureSpectrum Services or the PureSpectrum Technology (collectively, “Feedback”), You grant PureSpectrum a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable license to use such Feedback or subject matter thereof in any way and without limitation.
6.2 Your Rights and Responsibilities. As between You and PureSpectrum, all Intellectual Property Rights in and to Your Buyer Opportunity Data is owned exclusively by You. You, not PureSpectrum, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of any data submitted to or entered by You and Your Users on the PureSpectrum Marketplace; provided however, PureSpectrum acknowledges that certain data entered by You or Your Users related to a Buyer Opportunity will be treated as Your Confidential Information by PureSpectrum, specifically: (i) the CCPI or client revenue to the Buyer, (ii) project, client and internal survey name, and (iii) names of primary and secondary project managers, account executives, and client project managers. During the Term of this Agreement, Buyers have the right to view, access, or download the Respondent Screening Data related to a Buyer Opportunity for 30 days following each Respondent’s last interaction on the PureSpectrum Marketplace specific to that Buyer Opportunity.
6.3 PureSpectrum APIs. Your use of the PureSpectrum Services may involve the use of one or more APIs between the PureSpectrum Technology and Your third-party systems and software products. You recognize that PureSpectrum holds all rights, title, and interest over the PureSpectrum APIs, as well as any Intellectual Property Rights. Intellectual Property Rights to any software developed solely by You to consume the PureSpectrum APIs, if any, belong to You.
- WARRANTIES AND DISCLAIMER.
7.2 DISCLAIMER. THE PURESPECTRUM SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, PURESPECTRUM DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND SYSTEM INTEGRATION OR COMPATIBILITY. WITHOUT LIMITING THE FOREGOING, PURESPECTRUM DOES NOT WARRANT OR REPRESENT THAT THE PURESPECTRUM SERVICES WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED, OR ERROR-FREE. THE PURESPECTRUM SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PURESPECTRUM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS BEYOND ITS CONTROL.
8.1 Indemnification by You. You shall indemnify and hold PureSpectrum, and its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all damages, liability, claims, losses, awards, judgments, settlements, expenses and costs (including reasonable attorneys’ fees and costs of defense) and defend PureSpectrum against any actions, suits, litigation, claims, demands, arbitration or proceeding, and any threats thereof, resulting from or in connection with: (i) any claim alleging that Your Buyer Opportunity Data or any data published on the PureSpectrum Marketplace by You or Your Users infringes the rights of, or has caused harm to, a third party, or (ii) arising out of Your breach of Sections 4.2, 4.3, 4.4, 6, or 7.1 above.
8.2 Indemnification by PureSpectrum. Subject to Your lawful use of the PureSpectrum Services, PureSpectrum shall indemnify and hold You and Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim alleging that the PureSpectrum Services directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party as of the Effective Date of this Agreement, except that PureSpectrum will not be obligated to indemnify You to the extent that an infringement or misappropriation claim is based upon use of the PureSpectrum Services in violation of this Agreement or Applicable Laws.
8.3 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 8, the indemnified Party shall: (i) promptly give written notice of the claim to the indemnifying Party, (ii) allow the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim unless it unconditionally releases the indemnified Party of all liability), and (iii) upon request of the indemnifying Party, cooperate in all reasonable respects, at the indemnifying Party’s cost and expense, with the indemnifying Party in the investigation, trial, and defense, of such claim and any appeal arising therefrom. The indemnification obligations under this Section 8 are expressly conditioned upon the indemnified Party’s compliance with this Section 8.3 except that failure to notify the Indemnifying Party of such claim shall not relieve that Party of its obligations under this Section 8 but such claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations in this Section 8 shall survive termination of this Agreement for one year.
- LIMITATION OF LIABILITY.
- IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE PURESPECTRUM SERVICES OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, DATA BREACH, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE PURESPECTRUM SERVICES BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. CERTAIN STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.
- THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE AN AMOUNT LIMITED TO THE BUYER FEES PAID BY YOU FOR THE PURESPECTRUM SERVICES DURING THE 12 MONTHS IMMEDIATELY PROCEEDING THE DATE NOTICE OF THE CLAIM IS GIVEN. NOTWITHSTANDING THE FOREGOING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THIS AGREEMENT.
- THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO (I) BUYER FEES OR SAMPLE COST DUE UNDER THIS AGREEMENT, (II) A BREACH OF SECTIONS 4, 6 OR 7.1 OF THIS AGREEMENT, OR (III) EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 8.
- TERM AND TERMINATION.
10.2 Termination of Agreement. A Party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other Party 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 becomes subject to U.S. economic sanctions or other Applicable Laws that would make unlawful the performance of this Agreement by either party. PureSpectrum may terminate this Agreement immediately if You are in breach of Section 4 of this Agreement.
10.3 Suspension for Nonpayment. Any breach of Your payment obligations will be considered a material breach of this Agreement. PureSpectrum, in its sole discretion, may suspend Your use of the PureSpectrum Services upon 10 days notice until all undisputed Buyer Fees and Sample Cost have been fully paid to PureSpectrum.
10.4 Effects of Termination. Upon termination of this Agreement, Your right to access or use the PureSpectrum Services immediately ceases, and PureSpectrum shall have no obligation to store, maintain, forward, or otherwise restore any data other than whatever data was previously downloaded by You. The termination of this Agreement for any reason shall not affect: (i) obligations of the Parties to account for and pay to one another amounts owed under this Agreement for activity that occurred on the PureSpectrum Marketplace (whether before or after the notice of termination), or (ii) any other obligation or liability which either You or PureSpectrum has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination.
- GENERAL PROVISIONS.
11.1 Notice. Except as otherwise specified in this Agreement, all notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given to a Party when delivered personally to such Party or sent to such Party by reputable express courier service (charges prepaid), or mailed to such Party by certified or registered mail, return receipt requested and postage prepaid, to such Party’s address on the Order Form or any other address that such Party has identified as the address for notices by written notice hereunder to the other Party at least 30 days prior to such other Party’s notice.
11.2 Governing Law; Dispute Resolution. This Agreement and any dispute arising out of or in connection with this Agreement will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of the State of New York, United States of America, without giving effect to conflicts of law principles thereof and excluding the U.N. Convention on the International Sale of Goods. The Parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. Except as provided below, each Party agrees that before it seeks mediation, arbitration, or any other form of legal relief, it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portion of any contract between the Parties and which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the Parties shall hold at least one meeting (in person or by video- or teleconference) for the purpose of attempting in good faith to resolve the dispute. Except as provided below, any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS for mediation before arbitration or any other form of legal relief may be instituted. Mediation may be commenced by a Party providing JAMS a written request for mediation setting forth the subject of the dispute and the relief requested. The Parties will cooperate with JAMS in selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation. The mediator shall be a retired judge who has had experience with technology disputes, but the mediator shall not have the authority to award punitive or exemplary damages. The Parties agree that they will participate in good faith and share equally in its costs. The mediation shall take place in New York, New York. The dispute resolution procedures in this Agreement shall not apply prior to a Party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets, or Confidential Information.
11.3 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between You and PureSpectrum.
11.4 Assignment. Either Party may assign its rights and obligations under this Agreement; provided, however, in the event You assign Your rights under this Agreement in connection with a merger, acquisition or sale of a majority of Your assets You will provide written notice to PureSpectrum directed to email@example.com); provided further, however, You may not assign this Agreement and the rights hereunder to a competitor of PureSpectrum without Our prior written approval. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
11.5 Expenses. Except as otherwise provided herein, all expenses incurred by each Party in performing its obligations hereunder shall be borne by the Party incurring the expense.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.7 Headings. The headings in this Agreement are for reference only and shall not limit or otherwise affect any of the meanings or interpretations of this Agreement.
11.8 Questions. Any questions regarding this Agreement should be directed to firstname.lastname@example.org.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, which means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Agreement” means these terms and conditions related to Your access to and use of the PureSpectrum Services and the Code.
- “API” means an application programming interface developed by PureSpectrum.
- “Annual Fee” means the Minimum Transaction Fee Annual specified on the Order Form. This fee represents the minimum amount of Completes multiplied by the applicable Buyer Transaction Fee specified on the Order Form that must be purchased during each Term.
- “Applicable Laws” means all applicable laws, statutes, enactment, regulations (including those related to data privacy, international communications, and the transmission of data, including the UK’s Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, any other laws or regulations implementing the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 and all applicable laws and regulations which amend or replace any of them, including the General Data Protection Regulation 2016/679), and any ordinances, rules, codes and orders of governmental authorities having jurisdiction over You or PureSpectrum, as well as relevant industry standards such as ESOMAR and the Insights Association.
- “Buyer” means the business entity accepting and entering into this Agreement for the purpose of acquiring Sample for Buyer Opportunities. For certain Buyers, the Buyer may also be the Supplier.
- “Buyer Fees” means the transaction fees, commissions, processing charges, and any other fees and billing terms specified on the Order Form.
- “Buyer Opportunity(ies)” means an engagement, campaign, or other project defined by a Buyer, such as Sample for a survey, a recruiting effort, or some other cost-per-action effort, that is sourced by one or more specific Supplier(s) or the PureSpectrum Marketplace.
- “Buyer Opportunity Data” means any data entered or provided by Respondents once they exit or are otherwise redirected from the PureSpectrum Marketplace to a third party service to conclude the Buyer Opportunity, which is never stored on the PureSpectrum Marketplace or in the Public Cloud.
- “Complete(s)(d)” means a transaction executed and concluded by a Respondent for a Buyer Opportunity as evidenced through the PureSpectrum Marketplace (specifically, the redirect link).
- “Intellectual Property Rights” means any copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), and patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights (whether registered or not) as may exist now and hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country, or jurisdiction.
- “PureSpectrum Marketplace Services” means the managed services related to survey design, survey programming, translation, data analysis, data presentation and reporting, obtaining registrants and participants for surveys and survey panels, assistance with advertising effectiveness campaigns, other advertising research services, and/or similar services outside the scope of this Agreement.
- “PureSpectrum Services” means online access to the PureSpectrum Marketplace and PureSpectrum APIs, as well as any technical support and other PureSpectrum Managed Services provided by PureSpectrum during the Term of this Agreement. PureSpectrum Services does not include OTC Activity, Sample or any Supplier Services as well as services performed by You or any third parties on Your behalf related to the Buyer Opportunities.
- “PureSpectrum Technology” means PureSpectrum’s proprietary technology (including software, hardware, APIs, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) underlying the PureSpectrum Marketplace.
- “Marketplace Activity” or “Marketplace Completes” means any Buyer Opportunity occurring on the PureSpectrum Marketplace.
- “Marketplace Data” means any data, metadata or other information that is learned, gathered, published, indexed, uploaded, created, bought or stored on the Marketplace Platform, including without limitation, the Respondent Screening Data.
- “Marketplace Exchange” means a marketplace on the Marketplace Platform consisting of Suppliers and Buyers who have agreed to be participating members by either accepting this Agreement, if a Supplier, or the applicable Buyer business terms.
- “Marketplace Platform” means the Public Cloud platform and application of PureSpectrum, Inc. based on PureSpectrum Technology that is used to facilitate Completed transactions between Buyers and Suppliers related to Buyer Opportunities.
- “Order Form(s)” means an online or offline document specifying the PureSpectrum Services to be purchased hereunder during the Subscription Term, including payment terms, applicable taxes, and payment method, that is executed by You and PureSpectrum, including any addenda and supplements thereto.
- “OTC Activity,” “Over the Counter Activity,” or“OTC Completes” means any Buyer Opportunity on the PureSpectrum Marketplace but not utilizing the PureSpectrum Marketplace.
- “Pilot Period” means the period of time identified on the applicable Order Form during which no Annual Fee will be charged.
- “Public Cloud” means the cloud-based PureSpectrum Services provided by PureSpectrum (and its third party sub-processors) on servers located in the United States.
- “Reconciliation Window” means a period equal to the remaining days in the calendar month when the Respondent interview or transaction is concluded plus the following calendar month.
- “Respondent(s)” means a natural individual who has been sent to the PureSpectrum Marketplace by a Supplier and consented to participate in Buyer Opportunities.
- “Respondent Screening Data” means all data supplied, indexed, or otherwise transmitted by Suppliers or provided by their Respondents on or through the PureSpectrum Marketplace for the purpose of asking and answering questions and qualifying each Respondent in an attempt to Complete a Buyer Opportunity, which information is then stored by PureSpectrum in the Public Cloud.
- “Sample” means access to Respondents who are made available by a Supplier on the PureSpectrum Marketplace to answer questions and participate in Buyer Opportunities.
- “Sample Cost” means the price You agree to pay for a Buyer Opportunity and the price each participating Supplier agrees to accept for the services being performed for such Buyer Opportunity, which is exclusive of any Buyer Fees.
- “Subscription Term” means the period during which Buyer may access and use the PureSpectrum Marketplace.
- “Supplier(s)” means any company with a prequalified user base of individuals willing to be Respondents on the PureSpectrum Marketplace.
- “Supplier Services” means Sample sold by Suppliers and any other services Suppliers agree to make available in response to each Buyer Opportunity.
- “Terminated” means a transaction executed and concluded by a Respondent for a Buyer Opportunity that does not qualify as a Complete for the reasons described in section 3.6 or in the Reconciliation Report located at: https://support.PureSpectrumhq.com/s/article/Reconciliation-Report.
- “Users” mean Your employees, representatives, consultants, contractors or agents who have been granted access to use the PureSpectrum Marketplace on Your behalf either via user identifications and passwords or via an API integration.
- “We,” “Us,” “Our,”or “PureSpectrum” means PureSpectrum, Inc., a Delaware limited liability corporation.
“You” or “Your” means the Buyer or an Affiliate of that company that has signed an Order Form. A Buyer may also be a Supplier, which will require Your agreement to separate Supplier terms and conditions.