Welcome to the SurveyGizmo web site (the “Site”) operated by Widgix EU Limited (“Widgix,” “we,” “our,” or “us”). We are a limited company registered in England. Our registered company number is 09549549 and our registered office is 5 New Street Square, London, EC4A 3TW.
Please read the following terms and conditions of service (“Terms”) carefully as they contain the legal terms and conditions that you agree to when you access or use the Site and the SurveyGizmo services provided to you by Widgix through the Site.
Acceptance of Agreement
“Agreement” means these Terms and any terms provided or made available to you during the ordering or registration process (“Order Process”) which are incorporated into these Terms, including without limitation all pricing and payment terms. This Agreement is a legal agreement between Widgix and you (“you”) if you are acting on your behalf or the business entity or person for whom you are acting that will be using the SurveyGizmo Services (defined below) for any reason (“Customer”) as the user of the SurveyGizmo Services to be provided by Widgix under this Agreement. You and any persons that you authorize to use Customer’s account may be referred to in these Terms as the “User.”
If you are acting on behalf of Customer, you agree that you are an employee or agent of Customer and are entering into this Agreement for use of the SurveyGizmo Services by Customer for Customer’s own business purposes. You hereby agree that you enter into this Agreement on behalf of Customer and that you have the requisite authority to bind Customer to this Agreement.
If you do not agree to the terms and conditions of this Agreement, Widgix is unwilling to provide or make the SurveyGizmo Services available to Customer, and therefore, cancel and do not complete the registration process or otherwise use the SurveyGizmo Services. If you do not accept this Agreement, Customer should immediately cease any use of the SurveyGizmo Services.
In the case of inconsistencies between these Terms and information included in other materials (e.g., promotional materials and emails), these Terms will always govern and take precedence. In the case of inconsistencies between these Terms and the Order Process, the Order Process will always govern and take precedence.
1.SurveyGizmo Services. During the Term, and in accordance with these Terms, Widgix will use reasonable commercial efforts to provide Customer access to and use of the Software and other related support and other services described in this Agreement (such access, use and support and other services are referred to, collectively, as the “SurveyGizmo Services”) in accordance with any specifications set forth in the Order Process. “Software” means Widgix’s online survey tool, hosted by Widgix, used to facilitate Customer’s use, collection and integration of online data surveys. The SurveyGizmo Services may not be used to exchange identification numbers issued by public authorities and specific to individuals (whether for social security, identity card, health records or any other purpose), passwords, banking, credit card, or any other financial information. Widgix is under no obligation to provide extended customer service or consulting services as part of this Agreement.
2.Access Rights. Subject to the terms and conditions of this Agreement, Widgix grants to Customer, during the Term, a non-exclusive, non-transferable right to access and use the Software and SurveyGizmo Services as set forth in Order Process, solely to assist Customer in the processing and analysis of Customer’s data. Widgix reserves all rights (including all intellectual property rights) in and to the SurveyGizmo Services not granted herein.
3.1Customer agrees that it will not, and will not allow its directors, officers, employees or agents to: (a) copy, reproduce, modify, sell, lease, sublicense, market or commercially exploit in any way the SurveyGizmo Services or Software or any component thereof other than as expressly agreed to in this Agreement; or (b) disclose or grant access the SurveyGizmo Services or any component thereof to any third party other than one to whom Widgix has consented in writing.
3.2Customer agrees: (a) to use the SurveyGizmo Services in a manner that is ethical and in conformity with community standards we make available from time to time; (b) to respect the privacy of other users (Customer shall not seek data or passwords belonging to other users, nor will Customer or its Users modify files or represent themselves as another user unless explicitly authorized to do so by that user); (c) to respect the legal protection provided by copyright law, trade secret law, or other laws protecting intellectual property; (d) to accept notifications of service changes and payment information referred to as ‘operational emails’; and (e) to explicitly consent to receive commercial email and similar offers presented through the Software system or via email.
3.3Widgix strictly prohibits any involvement in unsolicited commercial email campaigns, commonly known as SPAM. Customer agrees and warrants that (a) it will not engage in any spamming activity in its use of SurveyGizmo Services and (b) its use of the SurveyGizmo Services will not violate any spamming, junk mail or other related laws or regulations prohibiting or discouraging unsolicited e-mail.
3.4Widgix strictly prohibits any security auditing or scanning of any of the SurveyGizmo websites, applications, networks, or databases.
3.5Customer shall not use the SurveyGizmo Service to upload, store, post, email, transmit or otherwise make available any content that infringes any intellectual property rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, sexually explicit, threatening, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), knowingly false or misleading (including impersonation of any person or entity with which you are not affiliated), or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited as set out in any acceptable use policy we make available from time to time.
4.Fees.In consideration for providing the SurveyGizmo Services, Customer shall pay to Widgix the fees set out in Order Process (“Fees”), without any set-off or deductions of any kind, as such Order Process may be amended from time to time in accordance with the terms hereof. Widgix shall have the right to increase the Fees at any time on notice to you in accordance with Section 18.9 (although no such increase will apply to SurveyGizmo Services already provided to you). Any increase in Fees shall take effect at the time stated in our notice to you. Customer’s continued use of the Services shall be deemed acceptance of any new Fees. Payment for the Fees shall be due and payable as specified in Order Process. Due to the nature of the technologies and Internet stability, service interruptions may occur. No full, partial, or prorate refunds will be made as adjustment for any such service interruption. Customer hereby acknowledges that changes in the nature of the SurveyGizmo Services that may be offered under these Terms that are beyond the control of Widgix and do not constitute grounds for any full or partial refund of any advance fees paid.
5.Taxes.The Fees are exclusive of all taxes and Customer shall pay (and Widgix shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with this Agreement, including, without limitation, any sales, use, goods and services, value-added and personal property taxes on any payments due to Widgix in connection with the SurveyGizmo Services provided hereunder, except for tax based solely on the net income of Widgix.
6.Response Data.The parties agree that all disclosure and use of survey information, responses thereto and Response Data (defined below) will comply with the terms and conditions and privacy policies under which it was collected and all applicable laws, statutes, rules or regulations relating to such Response Data and the persons from whom it is collected. “Response Data” means data obtained from persons responding to and/or having received surveys from Customer. Customer further agrees and warrants that its collection, use and processing of Response Data from those persons complies with its stated privacy policies and complies with all applicable data protection laws. In particular, Customer will ensure that its privacy policies are clearly drawn to its users’ attention in a manner compliant with EU requirements. Customer is responsible for all actions with respect to personal data of persons that respond to Customer’s surveys or to whom Customer sends surveys. Title to and ownership of all intellectual property rights of the Response Data shall remain exclusively with Customer.
7.Widgix Ownership.Customer acknowledges and agrees that Widgix (and/or its licensors) shall retain and own exclusively all right, title and interest and all intellectual property rights (including copyrights, trade secrets, trade-marks and patent rights) in and to the Software, SurveyGizmo Services and all materials used by Widgix to provide the SurveyGizmo Services (collectively, the “SurveyGizmo Materials”) and all copies thereof and customizations and modifications thereto, and that nothing herein transfers or conveys to Customer any ownership right, title or interest in or to the SurveyGizmo Materials or to any copy thereof or any license right with respect to same not expressly granted herein. Customer agrees that it will not, either during or after the termination of this Agreement, contest or challenge the ownership of the intellectual property rights in the SurveyGizmo Materials by Widgix.
8.Access to SurveyGizmo Services.Customer is responsible for obtaining all hardware, software and services, which are necessary to access the SurveyGizmo Services including without limitation, all computers, web browsers, and services provided by an Internet service provider. We cannot and do not guarantee that any content of the SurveyGizmo Services will be free from viruses and/or other code that may have contaminating or destructive elements. It is your responsibility to implement appropriate IT security safeguards (including anti-virus and other security checks) to satisfy your particular requirements as to the safety and reliability of content.
9.Customer Personnel.Customer is responsible for establishing throughout the Term the designated point of contact to communicate with Widgix.
10.Right to Modify the SurveyGizmo Service.Widgix may from time to time, in its sole discretion, change some or all of the functionality or any component of the Software and SurveyGizmo Services or make any modification for any purpose including but not limited to improving the performance, service quality, error correction or to maintain the competitiveness of the SurveyGizmo Services.
11.1Each party (“Recipient”) acknowledges that confidential information (including information such as contact details for survey respondents, survey information, Response Data, trade secrets and confidential technical, financial and business information) of the other party (“Discloser”) may be exchanged between the parties pursuant to this Agreement (collectively, “Confidential Information”). Recipient shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of Discloser. Recipient agrees that it will not disclose or use the Confidential Information of Discloser except for the purposes of this Agreement and as authorized herein. Recipient will promptly report to Discloser any unauthorized use or disclosure of Discloser’s Confidential Information that Recipient becomes aware of and provide reasonable assistance to Discloser (or its licensors) in the investigation and prosecution of any such unauthorized use or disclosure.
11.2Notwithstanding Section 11.1, Recipient may use or disclose the Confidential Information to the extent that such Confidential Information is: (a) already known by Recipient without an obligation of confidentiality, (b) publicly known or becomes publicly known through no unauthorized act of Recipient, (c) rightfully received from a third party without any obligation of confidentiality, (d) independently developed by Recipient without use of the Confidential Information of the Discloser, (e) approved by Discloser for disclosure, or (f) required to be disclosed pursuant to a requirement of a governmental agency or law so long as Recipient provides Discloser with notice of such requirement prior to any such disclosure (to the extent permitted by law) and takes steps reasonably necessary to maintain the information in confidence.
11.3Recipient shall, and shall cause all of its employees, contractors and consultants who have access to Confidential Information of Discloser to, safeguard and maintain the Confidential Information of Discloser in strict confidence and shall not, and shall cause its employees, contractors and consultants not to, disclose, provide, or make such Confidential Information or any part thereof available in any form or medium to any third party person except to Recipient’s employees, contractors and consultants who have a need to access such Confidential Information in order to enable Recipient to exercise its rights under this Agreement. Customer agrees not to: (a) disclose to third parties (whether in writing or orally) any benchmark test data related to the SurveyGizmo Services, and (b) use Widgix’s Confidential Information to create any computer software or documentation that is substantially similar to the Software.
12.Right to Perform Services For Others.Customer recognizes that Widgix is in the business of providing computer and information technology services and may perform services for other persons similar to Customer. Subject to Widgix’s confidentiality obligations pursuant to Section 11, Widgix retains the right to and nothing shall prevent Widgix from using any ideas, concepts, methods, processes, know-how, organization, techniques or any software, including the SurveyGizmo Materials, in providing any services to any third party.
13.1Customer understands that Widgix and/or its assigns do not guarantee or predict any type of profit or response from the SurveyGizmo Services. All services are provided to Customer with reasonable care and skill. No other conditions, warranties or other terms apply to any SurveyGizmo Services under this Agreement except to the extent they are expressly set out in this Agreement. In particular no implied conditions, warranties or other terms of any kind or nature, relating to satisfactory quality or fitness for purpose will apply to anything supplied under this Agreement. Customer acknowledges and agrees that Widgix and the suppliers of Widgix make no direct warranty of any kind to customer under this Agreement. If Widgix breaches its obligation to provide the SurveyGizmo Services with reasonable care and skill, the Customer must notify Widgix as soon as possible. The Customer must give Widgix a reasonable time to fix the problem without additional charge to the Customer. If Widgix is able to do this within a reasonable time, this shall be the Customer’s sole and exclusive remedy in relation to such breach and Widgix will, subject to clause 14.1, have no other obligation or liability in relation to such breach.
13.2Widgix does not represent or warrant that: (a) the Surveygizmo Services will meet Customer’s business requirements; (b) the Surveygizmo Services will be error-free or uninterrupted or that the results obtained from the use of the Surveygizmo Services or Software will be accurate or reliable; or (c) all deficiencies in the Surveygizmo Services can be found or corrected. Further, the Surveygizmo Services may be interrupted or unavailable for the purposes of performing maintenance or upgrades.
13.3Widgix will not be responsible for: (a) service impairments caused by acts within the control of Customer or any User; (b) inoperability of specific Customer applications or equipment; (c) inability of Customer to access or interact with any other service provider through the internet, other networks or users that comprise the internet or the informational or computing resources available through the internet; (d) interaction with other service providers, networks, users or informational or computing resources through the internet; (e) services provided by other service providers; or (f) performance impairments caused elsewhere on the internet.
13.4By using our SurveyGizmo Services, you understand and agree that you represent and warrant to us that you are in compliance with all applicable laws in regards to using our Site and SurveyGizmo Services.
14.Limitation of Liability.
14.1Nothing in this Agreement shall limit or exclude our liability for: (a) death or personal injury caused by our negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be excluded under applicable law, even if any other term of this Agreement would suggest that this might otherwise be the case.
14.2Subject to Section 14.1, we and our subsidiaries, affiliates, officers, employees, agents, and partners shall not be liable to you (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any:
(a) loss of profit;
(b) loss of goodwill;
(c) loss of business opportunity;
(d) loss of data;
(e) loss of savings;
(f) loss or waste of management time; or
(g) indirect, special or consequential loss.
14.3Subject to Sections 14.1 and 14.2, our (and our subsidiaries, affiliates, offices, employees, agents and partners’) aggregate liability arising from or in connection with this Agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) shall be limited to: (a) where you are not paying to receive the SurveyGizmo Services, to £100; or (b) where you are paying to receive the SurveyGizmo Services to the greater of: (i) an amount equal to 100% of the Fees payable by you in the relevant Contract Year; or (ii) £2000. “Contract Year” for these purposes means the relevant twelve-month period starting on the date we begin providing the SurveyGizmo Services or an anniversary thereof (as appropriate). Where the Customer’s payment is made on a monthly basis in accordance with the Order Process and payments have not yet been made for a 12 month period, the “Contract Year” shall be annualized using the monthly rate on a pro-rata basis. Where liability arises out of an event or series of connected events which span more than one Contract Year, all such liability shall be deemed to have occurred in the Contract Year in which the event first occurred, or in which the first of a series of connected events occurred, as appropriate.
14.4Please note that downgrading your account may result in the loss of content, features, or capacity of your account. Widgix does not accept any liability for any such losses.
15.Indemnification.You agree to defend, indemnify and hold harmless Widgix, its affiliates, officers, directors, employees, and agents, for any losses, costs, liabilities and expenses (including reasonable legal fees) relating to or arising out of your connection to or use of the SurveyGizmo Services, including but not limited to any breach by you of these Terms and any claims arising from the content you submit, post, transmit or make available through the SurveyGizmo Services.
16.Term and Termination.
16.1Term. This Agreement will commence on the date you start accessing or otherwise using the SurveyGizmo Services and shall continue either annually or on a month-to-month basis unless terminated earlier in accordance with this Section (“Term”).
16.2Termination. Customer may terminate this Agreement at any time for any reason by providing written notice to Widgix. Customer shall not be entitled to any refund of the Fees paid and shall remain liable for any Fees previously due if it exercises its right to terminate for convenience in accordance with this Section. Widgix reserves the right to suspend or terminate your account and use of the SurveyGizmo Services and the Software, at any time, without notice, for any reason, at our sole discretion, including but not limited to the following:
(a)if any check drafts authorized under this Agreement are returned unpaid;
(b)phishing attempts or schemes;
(c)if Customer is involved in the sales and/or distribution of the following materials:
(ii)Ponzi or Pyramid Schemes;
(d)sale and/or distribution of any illegal materials; or
(e)breach of these Terms, including policies or guidelines set forth by Widgix elsewhere; and
(f)conduct that Widgix believes is harmful to other users of the SurveyGizmo Services or the business of Widgix or other third party information providers (including slowing down the servers and affecting other users)
16.3 Effect of Termination. Except to the extent agreed to in writing by the parties, upon the termination of this Agreement:
(a)Widgix shall be entitled to immediately cease providing the SurveyGizmo Services;
(b)Widgix shall be entitled to immediately terminate Customer’s access to the SurveyGizmo Service;
(c)Customer shall forthwith pay to Widgix all amounts owing under this Agreement on the date of termination;
(d)the rights granted under Section 2 will automatically terminate; and
(e)further, Customer agrees that Widgix shall not be liable to Customer or any third party for any termination of your access to the SurveyGizmo Services. Widgix reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the SurveyGizmo Services (or any part thereof) with or without notice. Customer agrees that Widgix shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the SurveyGizmo Services.
16.4Return of Confidential Information.Upon the termination of this Agreement for any reason whatsoever, each party may request of the other that all documents, information, data and/or software however recorded, which contain any of the other’s Confidential Information be returned, provided that the party shall be entitled to charge a reasonable fees and materials charge for doing so. If no request is received for the return of Confidential Information within 30 days of the termination of this Agreement, the Confidential Information shall be destroyed within a reasonable time thereafter and shall not be used for any purpose whatsoever. While Widgix uses reasonable precautions to ensure your database is secure and protected, Customer understands and agrees that Widgix is under no obligation to export, extract, retrieve or ‘massage’ your database for Customer except through our EXPORT function.
16.5Survival.The parties hereto agree that the provisions hereof requiring performance or fulfillment after the expiry or earlier termination of this Agreement shall survive such expiry or earlier termination. The provisions of this Agreement relating to ownership, confidential information, warranty disclaimer, indemnification and limits of liability shall survive the expiration or termination of this Agreement.
17.Independent Contractor.Widgix employees shall not be deemed at any time to be employees or servants of Customer and Widgix is and shall remain an independent contractor for all purposes. Unless otherwise agreed to in writing, Widgix does not undertake to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer’s business or operations.
18.1Notice.Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, e-mail, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, 1 day after deposit with an overnight courier, 5 days after deposit in the mail or 2 days after valid transmission by email. Notices will be sent to a party at its address set forth in the Order Process or such other address as that party may specify in writing pursuant to this Section. Customer agrees to provide us with such other information relating to your use of the SurveyGizmo Services as we deem necessary or desirable. Customer shall notify us if Customer’s address, email address, telephone number, or billing information changes.
18.2Force Majeure.If Widgix’s performance under this Agreement, or any obligation under this Agreement, is prevented, restricted, or interfered with by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers, war or other violence; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of Widgix, Widgix shall be excused from such performance to the extent of such prevention, restriction or interference.
18.3Severability.To the extent that any provision, portion or extent of this Agreement is deemed to be invalid, illegal or unenforceable, such provision, portion or extent shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of this Agreement, as the case may be, shall remain binding upon the parties.
18.4Assignment.Customer may not assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without Widgix’s prior written consent. Widgix may assign its rights and obligations under this Agreement by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise to any of its affiliates (being a subsidiary or holding company of Widgix or any subsidiary of any holding company of Widgix). Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.
18.5Trademark Information.Unless expressly requested in writing, we reserve the right to have fair use of your company or organization’s name and logo in our promotional material.
18.6Governing Law.This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the courts of the England for any legal action arising out of this Agreement or the performance of the obligations hereunder or thereunder, but Widgix is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its intellectual property rights.
18.7Counterparts.This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
18.8Headings.The subject headings of the articles and sections are for convenience only and shall not affect the construction or interpretation of any of its provisions.
18.9Entire Agreement; Waiver.This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement although nothing in this Section shall operate to exclude any representation made by a party fraudulently. Each party acknowledges that, in entering into this Agreement, it has not relied on any statement, representation or communication not expressly set out in the Agreement. SurveyGizmo reserves the right to change these Terms as needed and as shall be updated on the Site and www.surveygizmo.eu/terms, including, but not limited to, the right to change our subscription rates at any time. These terms were last updated on April 5, 2016. Use of the SurveyGizmo Services by Customer after any such changes constitutes acceptance of any new terms and conditions.
If you do not agree to the new terms and conditions, you may terminate this agreement in accordance with our cancellation policy. For changes in subscription rates, we will use reasonable commercial efforts to give thirty (30) days’ notice prior to changing subscription rates. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. In the event of a conflict between this Agreement and any other terms contained on the Site, this Agreement shall control. No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement. This Agreement sets forth the general terms and conditions applicable to all services provided by SurveyGizmo to Customer and no terms or conditions proposed by either party, including any purchase order submitted by Customer, shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. Customer further understands and agrees to hereby waive any purchase order terms and conditions not expressly accepted in writing by signature representatives of both parties. Customer also understands and agrees that references to purchase orders on any services invoices or otherwise shall not constitute Widgix acceptance of purchase order terms and conditions. To the extent of any conflict between the provisions of this Agreement and the provisions of any purchase order, the provisions of this Agreement shall govern.
Effective: May 31, 2016