Terms & Conditions
The company, quantilope Inc., a Delaware corporation (“quantilope”), provides a web-based software solution commonly referred to as quantilope or Agile Insights Software, all components and functions relating thereto (collectively, the “Platform”), and consulting services relating thereto.
Part A – General Terms and Conditions
- Application; Third Party Services
- 1.1 These General Terms and Conditions of Business (this “GTC”) shall apply to all contracts formed between quantilope and each client of quantilope (each such contract counterparty, in such capacity, “Client”) for Client’s use of the Platform in connection with market research studies (collectively, “Projects”) and to contracts governing the rendering of consulting services by quantilope (each such contract, an “Individual Contract”) in connection with each phase of a Project, which consist of data collection, data evaluation, and the presentation of any findings from such evaluation to Client, in each case, to the extent set forth in the applicable Individual Contract.
- 1.2 As a supplement to these provisions in Part A of this GTC, the provisions in Part B of this GTC shall apply to the use of the Platform (including any Projects carried out thereunder), the provisions in Part C of this GTC shall apply to quantilope’s providing of consulting services, and the provisions in Part D of this GTC shall apply to quantilope’s providing of panel access and services. To the extent reference is made in any of Parts A, B, C, or D (each, a “Part”) to a section of this GTC without reference to a corresponding Part, such reference shall be deemed to be to a section in such Part.
- 1.3 In no event shall Client alter, supplement, waive, or otherwise amend any provision of this GTC without the express written consent of quantilope. The failure by quantilope to enforce any provision of this GTC or anyIndividual Agreement shall not constitute a waiver of any such provision and quantilope shall at all times retain the right to enforce such provision unless expressly waived in writing.
1.4 In the event of any conflict between the provisions of an Individual Contract and this GTC, such Individual Contract shall control.
1.5 In the performance of its service obligations under any Individual Contract, quantilope shall have the right, in its sole discretion, to subcontract all or any portion of its rights and responsibilities with respect to such services to any third party.
Contract Formation; Binding Nature
- An Individual Contract is formed (i) when quantilope has delivered an offer concerning the specifically desired scope of services to Client in writing (including, without limitation, by fax or e-mail) and (ii) Client accepts such offer within ten (10) business days (or the notice period otherwise established in the offer or agreed to in writing by Client and quantilope) in writing (including, without limitation, by fax or e-mail).
- Warranty; Liability; Indemnification
3.1 quantilope warrants that it shall provide its services in a professional and workmanlike manner. EXCEPT AS SO WARRANTED, quantilope DOES NOT MAKE ANY, AND SPECIFICALLY DISCLAIMS ALL, EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR GUARANTEES REGARDING THE SERVICES OR PRODUCTS DESCRIBED IN THIS GTC OR ANY INDIVIDUAL CONTRACT OTHER THAN THOSE EXPRESSLY CONTAINED HEREIN OR THEREIN, AND quantilope DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3.2 EXCEPT FOR QUANTILOPE'S INDEMNITY OBLIGATIONS AND IT’S GROSS NEGLIGENCE OR INTENTIONALLY WRONGFUL CONDUCT, QUANTILOPE'S LIABILITY TO CLIENT FOR DAMAGES RESULTING FROM ANY THIRD-PARTY CLAIMS ARISING FROM OR RELATING TO ANY ACTS OR OMISSIONS OF QUANTILOPE IN THE PERFORMANCE OF THIS GTC OR ANY INDIVIDUAL AGREEMENT, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT, SHALL NOT EXCEED THE TOTAL AMOUNT OF COMPENSATION RECEIVED BY QUANTILOPE FROM CLIENT UNDER THE PARTICULAR INDIVIDUAL AGREEMENT TO WHICH SUCH CLAIMS OR DAMAGES RELATE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO SUCH CLAIMS. NOTWITHSTANDING THE FOREGOING, BUT WITHOUT LIMITING QUANTILOPE'S INEMNITY OBLIGATIONS HEREUNDER, QUANTILOPE'S LIABILITY WITH RESPECT TO A DEFECTIVE DELIVERABLE SHALL BE LIMITED EXCLUSIVELY TO REPLACEMENT, REPAIR OR MODIFICATION OF SUCH DELIVERABLE.
3.3 No claim, suit, or action regardless of form, arising from or relating to quantilope’s acts or omissions in the performance of this GTC or any Individual Agreement may be brought or asserted more than one (1) year after Client becomes aware that the cause of action has occurred.
3.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN AND ANY BREACH OF THE CONFIDENTIALITY PROVISIONS OF SECTIONS 4 (NON-DISCLOSURE) AND 5 (OWNERSHIP OF INTELLECTUAL PROPERTY) HEREUNDER, NEITHER QUANTILOPE NOR CLIENT SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY, ANY OF ITS CUSTOMERS, END USERS, SITE VISITORS, AFFILIATES OR ANY OTHER PERSONS FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF DATA OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF A PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
3.5 Client and quantilope (respectively, a “Provider”) will defend, indemnify and hold harmless the other party (respectively, a “Recipient”) from and against any and all claims, suits, actions, losses, liabilities, damages, costs and expenses (including, but not limited to, costs of investigation and reasonable attorneys' fees) (collectively, “Losses”) incurred by Recipient based upon, arising out of, attributable to or resulting from a third-party claim that any information, design, specification, instruction, software, data, or material furnished by the Provider (collectively, “Material”) and used by a Recipient in connection with either the provision or the receipt of the services hereunder infringes or otherwise violates a copyright, trademark, patent, trade secret or other intellectual property right, or any other right of a third party (including, without limitation, the right of privacy or publicity) provided that: (a) the Recipient notifies the Provider in writing within thirty (30) days of the claim (or sooner if the nature of the claim so requires); (b) the Provider has sole control of the defense and all related settlement negotiations; provided, however, that no settlement that provides for injunctive or other non-monetary relief or that does not include a complete and unconditional release of the Recipient from all liability with respect to such claim shall not be effected by the Provider without the prior written consent of the Recipient, which consent shall not be unreasonably withheld or delayed; and (c) the Recipient provides the Provider with the assistance, information, and authority reasonably necessary to perform the above; reasonable and documented out-of-pocket expenses incurred by the Recipient in providing such assistance will be reimbursed by the Provider. The Provider shall have no liability for any claim resulting from: (i) the Recipient’s use of a superseded or altered release of some or all of the Material if infringement would have been avoided by the use of a subsequent unaltered release of the Material which is provided to the Recipient; or (ii) any Material not furnished by the Provider. In addition, Client shall defend, indemnify and hold harmless quantilope from and against any and all Losses incurred by quantilope based upon, arising out of, attributable to or resulting from the development, operation or maintenance of Client’s web site(s), Client’s advertising or marketing campaigns or methods, or any of its business practices (including, without limitation, any conduct, actions or omissions by third parties in relation to any of the foregoing), except for claims subject to indemnification by quantilope as Provider pursuant to the first sentence of this Section 3.5.
4.1 “Confidential Information,” with respect to a party (the “Disclosing Party”), means information about such Disclosing Party’s business or financial matters, technical information or any other proprietary information relating to such Disclosing Party and its operations, businesses, customers, products, software, hardware, network, technical know-how and financial affairs, that is obtained by another party (the “Receiving Party”) as a result of the working relationship between the Disclosing Party and the Receiving Party, whether obtained prior to or during the Term. Confidential Information shall include, without limitation, trade secrets, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, maps, blueprints, diagrams, flow charts and any other technical, financial, business or proprietary information of any kind or nature whatsoever, as well as any information which, due to its character or nature, reasonable people in a like position and under like circumstances would treat as confidential or understand as being confidential. The Receiving Party shall keep the Confidential Information secret and shall treat it with at least the same degree of care which the Receiving Party uses for protecting its own confidential information, but, however, in no event less than reasonable care. The Receiving Party shall use the Confidential Information only for exercising its rights and for fulfilling duties in accordance with the applicable Individual Contract. Confidential Information shall be disclosed only to those employees and contractors of the Receiving Party who have a need to know such Confidential Information and who are bound by confidentially obligations no less comprehensive than as set forth in this Section 4..
4.2 The obligations set forth in this Section 4 shall apply for two (2) years following the termination or expiration of the applicable Individual Contract.
4.3 Confidential Information shall not include any information that: (a) was previously known to the Receiving Party free of any confidentiality obligations; (b) is or has become publicly known, through no wrongful act of the Receiving Party; (c) was rightfully received from a third party who is under no obligation of confidence with respect thereto; (d) was independently developed by the Receiving Party without use of Confidential Information that has been disclosed pursuant to this GTC or the applicable Individual Contract; or (e) was required to be disclosed in order to comply with applicable law or regulation (including, without limitation, for securities law purposes) or with any requirement imposed by any governmental or court order, but only to the extent so required. In a circumstance in which disclosure of Confidential Information of the Disclosing Party is compelled by a governmental or court order, the Receiving Party shall limit the disclosure to only that Confidential Information of the Disclosing Party which must be disclosed in order to comply with the order and shall give the Disclosing Party prompt prior written notice of such compelled disclosure so that the Disclosing Party may seek to protect such Confidential Information.
- Ownership of Intellectual Property
5.1 Except as otherwise specifically provided below or in an Individual Contract, quantilope and Client shall retain all right, title and interest in and to such party’s Intellectual Property (as defined below) and all improvements, modifications, enhancements thereto, derivative works therefrom and any Intellectual Property developed or created by such party in connection with performing its obligations hereunder, and all copies and embodiments thereof, including all rights in know-how, copyrights, trademarks, patents, patent applications (including reissues, renewals, continuations, continuations-in-part, or divisions of any patent or patent application), trade secrets, instructions, improvements, modifications and all proprietary information relating to such party’s products and services (collectively, all of the foregoing, “Intellectual Property”). Without limiting the generality of the foregoing, no Client shall decompile, reverse engineer, disassemble, or otherwise attempt to discover the source code of any deliverable, or other product or software of quantilope. Each party agrees that it shall not at any time apply for any registration of any patent, copyright or trademark or other designation, which would affect the other party's exclusive ownership of such other party's Intellectual Property, or file any document with any government authority or take any action, which would adversely affect such other party's exclusive ownership thereof.
5.2 Without limiting the generality of this Section 5, quantilope’s Intellectual Property shall include the following: (i) any programming or code objects or methods that are used in developing or that are embodied in the Platform or any Project Data or other materials prepared by quantilope (collectively, “Objects”); or (ii) any Tools developed by or on behalf of quantilope (“Tools” shall refer to software code and/or a portion of code that: (a) accelerates the pace of application development or (b) accelerates the data conversion process; or (c) is a component of Client’s Intellectual Property that, in its generic form, may have general usefulness in a variety of other software programs or programming applications). quantilope grants Client and any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, Client (each such person or entity, with respect to Client, its “Affiliates”) that is subject to confidentiality and non-disclosure obligations no less restrictive than those set forth in this GTC, a worldwide, non-exclusive, non-transferable, royalty-free, perpetual, internal use only license to the object (executable) code form of any Objects and Tools and to any other Intellectual Property of quantilope that is incorporated into any work product developed for Client pursuant to any Individual Contract. Nothing herein shall be deemed to transfer rights in any Client Confidential Information to quantilope.
5.3 quantilope and Client acknowledge and agree that during the course of quantilope’s performance of services under this GTC or any Individual Contract, both parties and their respective employees and agents may acquire or become acquainted with Residuals (as defined below). Subject to the provisions of Section 4 and this Section 5, quantilope and Client shall be entitled to freely use and otherwise employ such Residuals in the furtherance of their respective business activities, including the provision of services by quantilope to its other customers. Nothing herein shall be construed to permit either party to use the other’s Confidential Information except to the extent reasonably required to perform its obligations or exercise its rights under this GTC or an applicable Individual Contract. “Residuals” means general: (i) data processing ideas, (ii) written documentation or other materials prepared by a party, provided they do not constitute Confidential Information or Intellectual Property of the other party, (iii) marketing and other concepts, (iv) aggregate data that is not specific to and does not identify the other party, and/or (v) training, knowledge or skills.
- Changes to the GTC
6.1 quantilope reserves the right to amend this GTC and any Individual Contract to the extent necessary to (i) conform with any applicable law, (ii) comply with any order or judgment of any court or other governmental agency, or (iii) update the Platform to conform to security and privacy-related rules, regulation, and/or industry best practices.
6.2 Other than with respect to those amendments described in Section 6.1, quantilope shall provide written notice of any changes to this GTC to Client in advance. To the extent that Client does not object to their validity within four (4) weeks of its receipt of such notice, the changes described therein shall be deemed accepted with prospective effect. If Client objects to such changes, then quantilope shall have the right to terminate the contractual relationship with Client. quantilope shall provide notice of the acceptance by silence provision and the termination right set forth in this Section 6.2 in any such notice of a proposed amendment.
7.1 Should one or several provisions of this GTC be or become invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
7.2 Other than as set forth in Section 6, each Individual Agreement and this GTC may only be modified or amended in writing signed by quantilope and Client.
7.3 Other than as expressly permitted in an this GTC or in the Individual Contract, Client may neither permanently nor temporarily transfer or assign to any third parties, without quantilope’s prior written consent, its rights and duties arising under this GTC or its applicable Individual Contract.
7.4 Notwithstanding any other provision of this GTC to the contrary, quantilope shall have the right to terminate any Individual Contract for Cause. As used in this GTC, “Cause” means: (i) Client’s failure to make payment on undisputed invoices within thirty (30) days of the delivery of such invoice pursuant to the terms hereof; (ii) Client’s intentional or grossly negligent failure to comply with the restrictions regarding Confidential Information set forth in Section 4 above; and (iii) Client’s failure to comply with the restrictions set forth in Section 3.2 of Part D of this GTC or under applicable law regarding the use and collection of Personally Identifiable Information. quantilope’s right to terminate for non-payment is in addition and without prejudice to all other rights and remedies otherwise available to quantilope, including, without limitation, quantilope’s right to collect the outstanding amount owed to quantilope plus interest on amounts not timely paid.
7.5 quantilope shall not be liable or deemed to be in default for any delay or failure in performance under this GTC or any Individual Agreement for any interruption of service resulting directly or indirectly by reason of fire, flood, earthquake, explosion or other casualty, strikes or labor disputes, disruptions of telecommunication systems, inability to obtain supplies or power, war or other violence, any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency, or any other act or condition whatsoever beyond the reasonable control, fault or negligence of the affected party (any such event, an “Event of Force Majeure”); provided the party so affected shall resume performance with dispatch whenever such causes are removed.
7.6 Any and all claims, controversies or disputes arising out of or in connection with this GTC and any Individual Contract shall be resolved in accordance with this Section 7.6. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, without regard to its conflicts of law provisions; Client and quantilope shall consent to the exclusive jurisdiction of the federal courts (or if federal jurisdiction is not available, of the state courts) located in New York City, New York for any legal action, suit or proceeding arising out of or in connection with this GTC and any Individual Agreement, and agree that any such action, suit, or proceeding may be brought only in such courts. The parties waive any right they might have to a trial by jury in any such suit, action or proceeding.
Part B – Terms and Conditions of Platform Use
- Account Access
1.1 Client shall be able, upon request, to establish a company client account for use of the Platform (an “Account”). In order to establish an Account, Client shall have to disclose to quantilope all registration data requested by quantilope. Maintenance of the Account pursuant to the corresponding Account contract (the “Account Contract”) shall be at no charge to Client. The transmission of registration data to quantilope shall constitute a binding offer by Client to enter into an Account Contract. Such offer is deemed accepted by quantilope upon its processing of such registration data. If quantilope and Client are party to an Account Contract but not an Individual Contract, then Client shall be able to access and view the Platform but shall not, however, be able to use the Platform or any of its functions.
1.2 Upon the effectiveness of an Account Contract, quantilope shall provide Client specific, personal identifiers for Account use (the “User Identifiers”). Client shall be obligated to treat these User Identifiers as quantilope’s Confidential Information. Client shall be solely responsible for maintaining the security of Client’s User Identifiers and shall be liable for any damages, losses, or harm to Client, quantilope, any third party, or its or their equipment, Project Data, or software resulting from unauthorized access to, or use of, the Platform caused by Client’s failure to maintain the security of such User Identifiers.
1.3 In accordance with the terms of any applicable Individual Contract, quantilope shall allow Client to generate additional User Identifiers for Client’s individual employees. The User Identifiers for Client’s employees shall allow them to, subject to the provisions this GTC, access Client’s Projects and any data (including, inter alia, questionnaire data, chart data, etc.), analysis results, and other content associated with such Project (with respect to such Project, collectively, the “Project Data”), in each case, maintained in the Platform, subject to the provisions of Section 2.5 below.
1.4 quantilope, in its discretion, may limit the total number of User Identifiers provided to Client; Client shall ensure that each employee having the right to the User Identifiers treats them in the same manner as Client is obligated to treat Confidential Information under this GTC.
1.5 The simultaneous use of a single User Identifier across multiple end devices shall not be permitted.
1.6 Client shall be obligated to inform quantilope without undue delay if Client obtains any knowledge that a User Identifier assigned to Client or any of its designees is being used by any unauthorized persons.
- Scope of Performance
2.1 Generally, quantilope offers three (3) different types of license packages for the fee-based use of the Platform:
(a) With the “Pilot Project License”, Client can carry out and manage a Project stipulated by an Individual Contract within a limited time period of three (3) months from the start of such Individual Contract, and have access to the corresponding Project Data in accordance with Sect. 2.4.
(b) With the “Annual License”, Client can carry out and manage a number of Projects per contract year (such number, the “Project Contingent”), stipulated by an Individual Contract, with a set of services to be provided by quantilope also set forth therein, and have access to the corresponding Project Data in accordance with Sect. 2.4. Projects decrease the Project Contingent once at least 10 Data Sets (as defined below) are collected. The maximum amount of Data Sets per Project is 5,000. Should more than 5,000 Data Sets be collected in one Project, all Data Sets beyond that initial 5,000 are treated as part of an additional, stand-alone Project and decrease the Project Contingent accordingly. For purposes of this GTS, a single “Data Set” is the complete set of answers to a questionnaire generated by a single participant.
(c) With the “Tracking License”, Client can carry out and manage a number of Projects per contract year (such number, the “ Tracking Project Contingent”), in connection with which Client can (i) gather Data Sets continuously for several discrete periods per contract year (each such period, a “Wave”), with the Tracking Project Contingent and the quantity of Waves as stipulated by an Individual Contract, and (ii) have access to the corresponding Project Data in accordance with Sect. 2.4. Projects decrease the Tracking Project Contingent once at least 10 Data Sets are collected in a Project’s first Wave. The maximum amount of Data Sets collected per contract year per Project within the Tracking Project Contingent, regardless of a Project’s number of Waves, is 100,000. Should more than 100,000 Data Sets be collected in one Project, all Data Sets beyond that initial 100,000 are treated as part of an additional, stand-alone Project and decrease the Tracking Project Contingent accordingly, unless otherwise stipulated in an Individual Contract.
2.2 Additional use rights of Client with respect to the Platform and Client’s Account shall be set forth in Individual Contracts between Client and quantilope.
2.3 With the Platform, quantilope is providing a technology for configuring, carrying out, analyzing, and visualizing results of polls or market research studies. Client, by its entry into an Individual Contract, acknowledges that it understands that this technology in and of itself, does not, and cannot, avoid or determine the presence of user errors or content-based errors established or input by Client (e.g., unsuitable study design, leading questions, ambiguous formulations, etc.), nor any effects of such errors on the collection of data, the analysis of data, or any other element of Project Data, nor can it alert Client to incorrect conclusions or business decisions based on the processing or analysis of Project Data.
2.4 Within the framework of the functionalities of the Platform in accordance with Sections 2.5, 2.6, and 4.5 below, Client shall be able to access any Project Data generated by quantilope for Client and/or by Client and, pursuant to Section 4.1, any Client Data.
2.5 With respect to a Pilot Project License, access to the corresponding Project Data shall be at no charge for the time period specified in Section 2.1(a) above. In the case of an Annual License or Tracking License, access to Project Data shall be at no charge for the term of the applicable Individual Contract. Client expressly acknowledges and agrees that, after expiration of the access period set forth in this Section 2.5, quantilope shall have the right to delete Client’s Project Data immediately after the end of the term of the applicable Individual Contract.
2.6 quantilope may, in its reasonable discretion, update the Platform from time to time; in the course of any such updates, upgrades, and releases quantilope shall be able to technologically guarantee access to Project Data from Projects which were carried out under a prior version of the Platform only for a period of two (2) years after the date of the first publication of a new release of the Platform immediately following the recordation of such Project Data, subject to the limitations set forth in Section 2.5 above.
2.7 quantilope may aggregate anonymized Project Data of Client with Project Data of quantilope’s other clients in order to create and publish industry specific benchmarks or other analyses.
2.8 quantilope shall make the Platform available on servers for use at quantilope’s computing center (“Transfer Point of the Service”). To use the Platform, it is necessary for Client to have access to the internet and use of an Internet browser to, via such access, connect to the Transfer Point of the Service. To achieve error-free use of the Platform, quantilope recommends Client use the most current version of the Google Chrome web browser, because with other browsers or with outdated versions of Google Chrome, a non-optimal depiction of the user interface can result.
2.9 The Platform shall be approximately 98% Accessible. ‘Accessibility’ denotes, with regard to one (1) continuous calendar year, the percentage of the time period in which use of the Platform was possible for Client so long as they possessed a functional internet connection (plus the time period in which the access was not possible due to planned servicing work or due to disruptions not within quantilope’s influence).
- Use Rights for the Platform/Analysis Results
3.1 To the extent not otherwise governed by an Individual Contract, quantilope shall grant Client the geographically unrestricted, fixed-term, revocable, non-exclusive, non-sub-licensable and non-transferable right to use the Platform for Client’s own operational purposes.
3.2 To the extent not otherwise governed in an Individual Contract, Client shall not have the right (i) to rent, lease, lend, reproduce, re-sell, or otherwise distribute or share the Platform or access thereto, even over the internet or a public or private downstream data network; (ii) to use the Platform for developing other services similar or competitive to those provided by quantilope; (iii) to activate and to use components of the Platform for which no use rights have been granted; (iv) to transfer the use rights in the Platform to third parties or to grant third parties access to the Platform, (v) to modify, to translate, to reproduce, or to decompile the programming code of the Platform or to examine its functions; and (vi) to remove, conceal, or to modify legal notices, including, but not limited to, those concerning the industrial property rights of quantilope.
3.3 To the extent that the Platform allows Client to reproduce analysis results from Client’s Projects, e.g., by printing or downloading such results to separate storage devices, quantilope shall grant Client, subject to any restrictions set forth in the applicable Individual Contract, the geographically and temporally unrestricted, revocable, non-exclusive, non-sub-licensable, and non-transferable right to use the reproduced items for Client’s own purposes. The analysis results in and of themselves shall remain freely exploitable for Client at any time, independently of the reproduced items generated over the Platform.
- Client Duties; License of Client Data; Rights of Third Parties
4.1 Client shall be obligated to ensure through suitable measures that the hardware and software employed by Client in the use of the Platform, including work-station computers, routers, data communication systems and so forth (collectively, the “IT Systems”) are free from any viruses, worms, Trojan horses, etc. (collectively, “Malicious Software”). Such suitable measures shall include, but not be limited to, Client’s (i) employing the respectively current version of the operating system software or a virus scanner on its IT Systems and (ii) regularly inspecting its IT Systems for Malicious Software and removing any if found. Client shall ensure that all data which Client generates or uploads onto quantilope’s servers in the course of its use of the Platform, e.g., questionnaire data, panel data, images, etc. (collectively the “Client Data”) are free from any Malicious Software.
4.2 Client shall grant quantilope a non-exclusive, geographically unlimited right without a fixed term temporally, to reproduce, to process, to transmit and, as applicable, to otherwise use Client Data, to the extent that such use is necessary to fulfill quantilope’s contractual duties vis-à-vis Client.
4.3 Client shall ensure (i) that Client is the holder of all rights in Client Data necessary to grant quantilope the rights set forth in Section 4.2 above, (ii) that Client can freely assign, transfer, and otherwise dispose of Client Data, and (iii) that Client Data are not encumbered by the rights of any third parties that may interfere with quantilope’s use thereof.
4.4 Notwithstanding any other rights and remedies quantilope may have pursuant to this GTC or any Individual Agreement, in the event of any breach by Client of the provisions of this Section 4, Client shall indemnify quantilope from all liability vis-à-vis third parties, including reasonable expenses of legal defense. quantilope shall additionally have the right (i) to delete any Client Data which does not conform to the requirements set forth in Section 4.1 and (ii) to delete any other content which does not conform to the requirements set forth in Section 4.3 if Client does not delete such without undue delay despite a request by quantilope.
4.5 Client represents that it is aware that without a separate written agreement expressly set forth in the applicable Individual Contract to the contrary, quantilope shall not generate any back-up copies of any Client Data and that quantilope shall have the right to delete Client Data in accordance with Sections 2.5 and 4.4. It shall be incumbent upon Client to independently generate back-up copies of their Client Data.
- Data Protection
Client warrants that Client has the right, pursuant to all applicable data protection laws, to collect, to process, and to use their respective Client Data within the scope of their use of the Platform or of other quantilope services under this GTC. Upon any breach of Client’s warranties in this Section 5, quantilope shall have the right to terminate without prior notice some or all Individual Contracts and other existing contracts between Client and quantilope.
Support services ordered by Client, including, but not limited to, consulting and technical services, shall be invoiced at cost to Client in accordance with the price list stipulated in the applicable Individual Contract, and shall be subject to the provisions of Part C of this GTC.
7.1 To the extent not stipulated to the contrary in the applicable Individual Contract, the stipulated fee for a Pilot Project License shall be payable without undue delay after the contract is entered into. In the case of an Individual Contract governing the use of the Platform in accordance with an Annual License or Tracking License, the fee shall be fully payable at the commencement of the contract and then at the commencement of each extended year.
7.2 Invoicing shall be effected via e-mail and subsequently, upon Client’s request, via physical mail.
7.3 All stipulated fees exclude use and other taxes imposed in the applicable statutory amount.
- No Warranty of Access
quantilope shall assume no warranty for Client’s internet access, including, but not limited to, the availability and dimensioning of the internet access. Client shall itself be responsible for its internet access as of the transfer point of the service.
- Contract Term of the Account Contract; Termination
9.1 Each Account Contract shall have a term of seven (7) calendar days. After the expiration of this term, the Account Contract shall automatically end and Client shall have no further access to their Account.
9.2 Notwithstanding the provisions of Section 9.1 above, an Account Contract shall not end as long as Client is party to at least one (1) Individual Contract which has not expired or terminated. After expiration of all of Client’s Individual Contracts, the corresponding Account Contract shall automatically terminate seven (7) days later.
9.3 An Individual Contract governing the use of the Platform in accordance with an Annual License or Tracking License shall have an initial term of one (1) year and shall be terminable with a notice period of no less than six (6) weeks prior to the end of the Term. If no termination or no timely notice of termination is effected, then the Individual Contract shall be extended for successive one-year periods.
9.4 An Individual Contract may only be terminated by a written instrument signed by the party empowered to terminate. A termination of one Individual Contract between quantilope and Client shall be without prejudice to the term and effectiveness of any other Individual Contracts with such same Client, unless otherwise stipulated in an Individual Contract.
Part C – Consulting Terms and Conditions
- Scope of Services
1.1 The nature and scope of consulting services to be provided by quantilope (the “Consulting Services”), the date of the rendering of such services, the commencement of the term and the duration for which such services shall be provided, the fees payable by a Customer for any such services, as well as any additional terms and conditions relating thereto shall be set forth in the applicable Individual Contract.
1.2 Services shall be performed at the operating site stipulated in the applicable Individual Contract. If no specific operating site is set forth in such Individual Contract, then the place of performance shall be the headquarters of quantilope.
- Use of Work Product
Client shall be entitled to a temporally unrestricted, revocable, non-exclusive, non-sub-licensable, and non-transferable right to use the work products which are created and transferred to Client by quantilope pursuant to the applicable Consulting Services. Client acknowledges that the work product is not a work-for-hire, and that, subject to the license granted to Client pursuant to Section 5.2 of Part A above, quantilope retains all right, title, and interest in and to the Intellectual Property covering or embodied by such work product.
- Client Assistance
In order to render the Consulting Services, quantilope is dependent upon the support and cooperative assistance of Client. Client shall be obligated to fully and punctually provide all requisite tools and equipment, information, and documents, and in the requisite quantity, to the employees of quantilope or any third parties retained for rendering the Consulting Services.
4.1 The fees for the Consulting Services shall be set forth in the applicable Individual Contract.
4.2 To the extent not otherwise stipulated in the applicable Individual Contract, fees for Consulting Services shall be payable:
(a) fees on a professional-fee basis (“time and material”) shall be payable retroactively on a monthly basis; and
(b) fees on a fixed-price basis shall be fully payable immediately upon the effectiveness of the applicable Individual Contract.
4.3 quantilope shall issue invoices setting forth the fees described in Section 4.2 above; such invoices shall be payable immediately after receipt by Client (by email or otherwise).
4.4 Invoicing shall be effected via e-mail and subsequently, upon Client’s request, via physical mail.
4.5 All stipulated fees exclude use and other taxes imposed in the applicable statutory amount.
- Contract Term; Termination
5.1 To the extent that a definite time period or definite calendar dates have been stipulated for rendering Consulting Services, neither of the parties to the applicable Individual Contract shall have the right to terminate such Individual Contract other than for Cause. If the consulting services are stipulated for an indefinite time, then each party shall be able to terminate such Individual Contract by providing written notice at least one (1) month prior to the end of the then applicable fiscal quarter.
5.2 An Individual Contract may only be terminated by a written instrument signed by the party empowered to terminate. A termination of one Individual Contract between quantilope and Client shall be without prejudice to the term and effectiveness of any other Individual Contracts with such same Client, unless otherwise stipulated in an Individual Contract.
Part D – Terms and Conditions for Panel Access and Related Services
- Scope of services
1.1 Along with collecting data through its own panel, Client shall have the opportunity to retain quantilope to collect survey data with respect to any Project (the “Panel Service”).
1.2 Each Individual Contract shall set forth the precise scope of the Panel Service to be provided by quantilope.
1.3 quantilope shall have the right to retain sub-contractors to carry out the Panel Services.
2.1 Upon commencing any data collection, quantilope shall issue invoices for the Panel Services; these shall be payable immediately after receipt (via e-mail or otherwise) by Client.
2.2 Invoicing shall be effected via e-mail and subsequently, upon Client’s request, via physical mail.
2.3 All stipulated fees exclude use and other taxes imposed in the applicable statutory amount.
2.4 Any offsetting with counterclaims by Client or any withholding of payments due to such claims shall be permissible only to the extent that such counterclaims are undisputed or have been determined to be legally binding by a court of competent jurisdiction in a final, non-appealable verdict.
- Anonymity of those Surveyed
3.1 Any persons surveyed in connection with the Panel Services shall remain anonymous to Client.
3.2 In the course of the Panel Services, Client shall not be allowed to collect any data that lets the participants be recognized or makes them identifiable (such information, collectively, “Personally Identifiable Information”). Such restrictions shall also apply to any technical means of identification (e.g., time-stamp analysis or using URL parameters). For the avoidance of doubt, Personally Identifiable Information includes any information that can be associated with or traced to any individual, including an individual’s name, address, telephone number, e-mail address, credit card information, social security number, or other similar specific factual information, regardless of the media on which such information is stored (e.g., on paper or electronically). Client shall comply with all applicable privacy and other laws and regulations relating to protection, collection, use, and distribution of Personally Identifiable Information. In no event shall quantilope or Client sell or transfer Personally Identifiable Information to third parties, or otherwise provide third parties with access thereto.
- Panel Data
The data generated within the scope of the Panel Services shall be deemed Client Data within the meaning of Part B. Sect. 4.1.
- Contract Term; Termination
6.1 To the extent an interview period has been stipulated for rendering the Panel Services, neither quantilope nor Client shall have the right to ordinary termination of the Individual Contract prior to the expiration of such interview period.
6.2 An Individual Contract may only be terminated by a written instrument signed by the party empowered to terminate. A termination of one Individual Contract between quantilope and Client shall be without prejudice to the term and effectiveness of any other Individual Contracts with such same Client, unless otherwise stipulated in an Individual Contract.