Terms and Conditions
Effective date: Effective date: August 30, 2024
1. AGREEMENT
The terms and conditions set forth herein, (collectively,
the “Agreement”), will apply to any purchase agreement, proposal or other
booking document (a “Purchase Agreement”) executed between FeedbackNow and
Client that references this Agreement and is for the purchase of FeedbackNow
Services (collectively referred to as the “Services”). This Agreement is
binding upon Client’s execution of a Purchase Agreement that references this
Agreement. Client agrees to pay FeedbackNow the payments set forth in each
Purchase Agreement for Services delivered in accordance with such Purchase
Agreement and this Agreement. Certain capitalized terms used herein have the
meanings assigned to them in Section 2 below.
2. DEFINED TERMS
For purposes of this Agreement:
a) “Affiliate” means any entity controlling, controlled
by or under common control with a party hereto.
b) “Client” means the client legal entity specified in
the Purchase Agreement.
c) “Client Personal Data” means any information
relating to an identified or identifiable natural person that is provided by
Client to FeedbackNow in connection with this Agreement.
d) “CCPA” mean the California Consumer Privacy Act.
e) “FeedbackNow Services” shall have the meaning set
forth in Section A.
f) “GDPR” shall mean collectively, regulation 2016/679
of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data
and on the free movement of such data (specifically, “EU GDPR”) and such
regulation as saved into United Kingdom law by virtue of section 3 of the
United Kingdom’s European Union (Withdrawal) Act 2018 and the UK Data
Protection Act 2018 (specifically, “UK GDPR”).
3. FEEDBACKNOW PRODUCTS AND SERVICES
1. FeedbackNow Services
1.1. Client may purchase FeedbackNow products
and services in a Purchase Agreement, including: (i) hardware that measures
user experience feedback and/or location presence, such as smiley boxes,
tablets, people counters, custom feedback boxes and gateways (the “Hardware”),
(ii) coded links to a digital version of the Hardware that Client may print or
embed on its digital platforms, such as websites or mobile applications, to
obtain user experience feedback (“Digital Connectors”, and together with the
“Hardware,” hereinafter referred to as the “CX Inputs”) and (iii) subscriptions
to FeedbackNow’s web and mobile software platform which collects, processes and
analyzes the feedback provided through the CX Inputs (the “FeedbackNow
Platform”). The sale of CX Inputs and subscriptions to access the FeedbackNow
Platform, as well as any other FeedbackNow devices, applications, products or
services related thereto that Client purchases on a Purchase Agreement, shall
collectively be referred to as the “FeedbackNow Services.” The purchase of
FeedbackNow Services will be governed by the attached Master Agreement,
supplemented by this Addendum.
2. Hardware
2.1. Client will own the Hardware it purchases
in the applicable Purchase Agreement, subject to the conditions, restrictions
and limitations herein. Title and the risk of loss and damage to Hardware
passes to the Client when such goods are delivered to the Client’s premises.
This applies regardless of which party pays the shipping costs.
2.2. FeedbackNow maintains ownership of all
intellectual property rights associated with the Hardware, including any design
elements. The Client may not reverse engineer, deconstruct, modify or copy the
programming, design or functions of any Hardware and Client shall not sell,
lease, rent, loan, distribute or transfer Hardware to any third party. The
FeedbackNow logo must be visible and unaltered on any Hardware on the Client’s
premises that is visible to the public and on any feedback question(s) accompanying
the Hardware.
2.3. Unless otherwise agreed to in a Purchase
Agreement, the Client will be solely responsible for the installation of the
Hardware. Any customization of the Hardware beyond what is specified in the
Purchase Agreement will be at an additional charge. Client is responsible for
general care, cleaning and upkeep of the Hardware.
3. Digital Connectors
3.1. Digital Connectors take Client’s customers,
prospects and end users (“Customers”) to a digital version of FeedbackNow’s
Hardware which allows Customers to provide their user experience feedback to
Client. If Client purchases Digital Connectors, Client is entitled to post the
number of Digital Connectors purchased on the applicable Purchase Agreement for
the subscription term set forth therein. Client, or its authorized agents, may
post the Digital Connectors on any Client-owned websites or applications. The
Digital Connectors may not be posted on any Affiliate or third-party websites
or applications unless explicitly agreed to in a Purchase Agreement.
3.2. FeedbackNow will not be responsible for any
problems resulting from the inoperability of the Digital Connectors with
Client’s or third parties’ systems, sites and applications. Client is
responsible for deploying the Digital Connectors on its managed sites and applications.
Clients will be able to make certain customization to the Digital Connectors
via self-service option on the FeedbackNow Platform, but any changes outside of
the pre-set customization options will be at an additional charge.
3.3. Client will not include any statements
accompanying the Digital Connectors that asserts or implies FeedbackNow’s
endorsement of Client’s products or services. Client is prohibited from using
the Digital Connectors to collect any personal, financial, health or
identifying information of its Customers. FeedbackNow may delete any such
information provided by Customers and may include a disclaimer on the Digital
Connectors explicitly discouraging Customers from providing such information.
3.4. Client will not, and will not permit any
third party to, sublicense, rent, copy, modify, create derivative works of,
translate, reverse engineer, decompile, disassemble or resell the Digital
Connectors.
4. FeedbackNow Platform
4.1. Client may purchase a License to access the
FeedbackNow Platform for the subscription term set forth in the applicable
Purchase Agreement. The FeedbackNow Platform allows the Client to access
Customer feedback responses, tracking data and associated information obtained
from Client’s CX Inputs (the “Raw Data”). Client may utilize the FeedbackNow
Platform to analyze and summarize the Raw Data (the “Analyzed Data”, and
collectively with the Raw Data, hereinafter referred to as the “Data”). Client
does not have the ability to directly access the Data from the CX Inputs and
will only have access to the Data if Client purchases a subscription to the
FeedbackNow Platform.
4.2. Client’s employees must register with a
username and password to access the FeedbackNow Platform. Client’s third party
contractors may also register for the FeedbackNow Platform, provided such
access is solely in connection with the contractor’s provision of services to
Client. Client is responsible for its employees’ and contractors’ use of the
FeedbackNow Platform and Data in accordance with the terms herein.
4.3. Client will not: (i) reverse engineer or
copy the FeedbackNow Platform or any part, feature, function or user interface
thereof, (ii) attempt to gain unauthorized access to the FeedbackNow Platform
or its related systems or networks, (iii) make the FeedbackNow Platform
available to anyone other than its employees and contractors who have
registered for an account, (iv) sell, resell, license, sublicense, distribute,
rent or lease any part of the FeedbackNow Platform, (v) interfere with or
disrupt the performance of the FeedbackNow Platform, including by introduction
of a virus, worm, Trojan Horse or other malicious software, (vi) use the
FeedbackNow Platform to violate the security or integrity of any other
application, computing device, system or network, including but not limited to
gaining unauthorized access to any such systems, (vii) use the FeedbackNow
Platform to distribute or facilitate the sending of unsolicited or unlawful
emails, texts or other messages, or (viii) access the FeedbackNow Platform in
order to build a competitive product or service.
4.4. The FeedbackNow Platform may contain
features designed to interoperate with third-party applications. Client may be
required to register for accounts and agree to terms and conditions of third
parties in order to access such features. If any third party ceases to make its
applications available for interoperation with the FeedbackNow Platform on
reasonable terms, then FeedbackNow may cease providing access to such features
on the FeedbackNow Platform without entitling Client to any refund, credit or
other compensation.
4.5. FeedbackNow reserves the right to make
changes to the FeedbackNow Platform at any time, provided that any such change
does not prevent Client from obtaining its Raw Data. The FeedbackNow Platform
will be updated at FeedbackNow’s discretion; FeedbackNow makes no
representations or warranties regarding the schedule, content or features of
any updates. Client represents that it is not purchasing access to the
FeedbackNow Platform based on any proposed features or future functionality.
Client recognizes that FeedbackNow cannot protect against all forms of viruses,
intrusions, hacking, counterfeits and malware that may exists, but FeedbackNow
will use industry standards safeguards to protect the security of the
FeedbackNow Platform.
5. Data Ownership and License; Client Materials
5.1. All Data are owned by FeedbackNow. FeedbackNow
may use, transmit, display, distribute, sell or transfer the Data for any
business or commercial purposes, provided the Data is in aggregated, anonymous
form and FeedbackNow does not reference the Client as the source of such Data
to third parties. Such business and commercial uses may include, but are not
limited to, diagnosing technical issues, identifying customer needs, providing
benchmarking analysis to customers and improving our products and services. FeedbackNow’s
ownership rights in the Data are perpetual and irrevocable and shall not expire
or terminate at the expiration or termination of this Agreement or any Purchase
Agreement.
5.2. Subject to the limitations in this Section
5, Client is granted a non-exclusive, non-transferable, worldwide right to
access and use the Data that is generated from its CX Inputs. Client may (a)
use Data for any internal business purposes, (b) share Data in direct
communications with third-party contractors that are providing services to
Client and business partners working with Client on customer experience
analysis, provided that Client remains responsible for such party’s usage of
the Data in connection with the terms herein and (c) publicly display an
official Data summary certificate (a “Certificate”) generated via the tools
available on the FeedbackNow Platform while Client’s subscription to the
FeedbackNow Platform is active, provided that the Certificate includes
accompanying text that states “Customer feedback results certified by
FeedbackNow.” Client may not use any other text or references with regards to
the Certificate without the prior written consent of FeedbackNow. Except as set
forth in the foregoing, Client is prohibited from sharing, distributing,
displaying, selling or transferring any Data, including but not limited to use
in any advertising, marketing or promotional materials, without FeedbackNow’s
prior written consent.
5.3. FeedbackNow reserves the right to delete
the Data from its systems (including the FeedbackNow Platform) after the
expiration or termination of Client’s subscription to the FeedbackNow Platform.
Client is solely responsible for ensuring it has saved and backed-up its Data.
After the expiration of Client’s subscription to the FeedbackNow Platform,
Client may continue to use any Data it has saved to its own systems, provided
such usage is in accordance with the usage restrictions herein, but Client will
no longer have access to any Data on FeedbackNow’s system (including the
FeedbackNow Platform) nor will it be able to receive any new Data from the CX
Inputs.
5.4. Any pre-existing Client information, data
or materials that Client inserts or uploads into the FeedbackNow Platform or is
provided to FeedbackNow in connection with the FeedbackNow Services (“Client
Information”) will remain Client’s property and shall only be used by FeedbackNow
as necessary to perform the FeedbackNow Services. Client represents and
warrants that it owns or licenses all Client Information and has the right to
transfer the Client Information to FeedbackNow to perform the FeedbackNow Services.
Client shall not use or provide any Client Information in violation of any
applicable laws, agreements or third-party rights. Client is responsible for
the accuracy, quality and legality of the Client Information. Client
understands that the FeedbackNow Services are not intended to be used for
backing up or storing Client Information and thus FeedbackNow shall not be
responsible for any deletion or destruction of Client Information.
6. Limited Warranty
6.1. The Hardware is guaranteed to properly
transmit the Raw Data to the FeedbackNow Platform for a period of twelve (12)
months from date of delivery (“Warranty Period”). The Client must notify FeedbackNow
within the Warranty Period to receive service on its warranty claim; warranty
claims are barred outside of the Warranty Period. If the Client has submitted a
valid warranty claim within the Warranty Period, then FeedbackNow will either
repair the defective Hardware or supply a replacement, at FeedbackNow’s sole
discretion.
6.2. The warranty does not cover any claim for:
(i) defects that do not substantively affect the performance of the Hardware,
(ii) temporary malfunctions, (iii) natural wear and tear, (iv) damage due to
negligent treatment, (v) unintended uses or uses with unapproved hardware,
equipment, software, or media, (vi) defective installation by Client, (vii)
theft, loss, vandalism, or other damage caused by Client, third parties or a
force majeure, or (viii) issues caused by external factors, such as unique
conditions at Client’s premises or other unusual external factors not
reasonably foreseeable. Client shall not, and shall not allow a third party to,
make any repairs or modifications to the Hardware. The warranty herein shall be
null and void if any unauthorized repairs or modifications are made to the
Hardware. Client shall be responsible for any additional warranty servicing
costs (including shipment, travel and labor) that results from the Hardware
repairs.
6.3. THE FOREGOING WARRANTY AND THE WARRANTIES
IN THE MASTER AGREEMENT ARE PROVIDED IN LIEU OF ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES
AS TO INFRINGEMENT AND WARRANTIES AS TO ACCURACY, COMPLETENESS, OR ADEQUACY OF
INFORMATION.
7. Service Disruptions
7.1. FeedbackNow will use reasonable efforts to
minimize disruptions in the FeedbackNow Platform, but reserves the right to
suspend the FeedbackNow Platform without notice for required updates or
maintenance, emergency repairs or circumstances outside of FeedbackNow’s
control. FeedbackNow will use reasonable efforts to provide advanced notice of
any planned outages of the FeedbackNow Platform. FeedbackNow is not liable for
any delays in the shipment of Hardware, or for any interruptions in the
FeedbackNow Platform, the CX Inputs, or transmission of Data from the CX
Inputs, due to force majeure or other events outside of its control, such as
floods, fires, earthquakes, civil unrest, wars, acts of terror, strikes,
telecommunications or internet failures, power or electrical shutdowns or other
acts of God. Client agrees that the FeedbackNow Services are not intended or
designed to be used in any mission-critical circumstances or for any uses
requiring fail-safe performance, or where failure could lead to death, personal
injury or environmental damage, and Client shall not use the FeedbackNow
Services for such purposes.
8. Applicable Laws; Export Compliance; U.S.
Government Users
8.1. Client agrees to abide by all applicable
laws in connection with its usage of the FeedbackNow Services and any Data,
including any export laws and regulations of the United States and other
relevant jurisdictions. Client shall not use, or permit anyone else to use, any
FeedbackNow Service in a U.S.-embargoed country. Client represents that it is
not named on any U.S. government denied-party list or equivalent in the
jurisdiction where the FeedbackNow Services will be used.
8.2. If Client is a U.S. government entity,
Client acknowledges that the Digital Connectors and FeedbackNow Platform are
each a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct.
1995), consisting of “commercial computer software” and “commercial computer
software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept.
1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4 (June 1995), as applicable, all U.S. Government users acquire a
license to the Digital Connectors and FeedbackNow Platform with only those
rights set forth herein.
9. References; Feedback
9.1. FeedbackNow is entitled to use the Client
as a reference or use Client’s name and business description for advertising
purposes related to Client’s use of the FeedbackNow Services.
9.2. Any input and feedback from the Client
regarding product or service improvements, modifications, bug fixes,
enhancements or similar information may be used by FeedbackNow to improve or
enhance its products and services, and accordingly, Client grants FeedbackNow
and its Affiliates a perpetual, irrevocable, royalty-free, worldwide right and
license to use, reproduce, disclose, sublicense, modify, and otherwise exploit
such feedback, provided that Client is not externally referenced as the source
of such feedback.
10. Beta Features
10.1. If Client accesses any beta features,
technologies, and services that are not generally available to customers, such
beta features are being offered to Client for evaluation and feedback purposes
only and not for production use. Such beta features are not supported and are
provided “as-is” without any warranty of any kind. FeedbackNow shall have no
liability for any harm or damage arising out of or in connection with a beta
products or services.
4. TERMINATION
This Agreement shall commence on the date hereof and shall
remain in effect until terminated in accordance with this Section 4. Either
party may terminate this Agreement (in whole or with respect to particular
Purchase Agreements only) with immediate effect by written notice to the other
if the other party commits a material breach of this and Agreement such breach
is not remedied within 15 days after being required by notice to do so. In
addition, either party may terminate this Agreement for convenience upon
written notice at any time after the expiration or termination of all Purchase
Agreements executed hereunder. A Purchase Agreement may include additional
termination provisions applicable only to such Purchase Agreement. The
termination of an individual Purchase Agreement will not affect the
effectiveness of this Agreement or any other Purchase Agreement. Any provisions
in this Agreement that by their nature are intended to survive expiration or
termination of this Agreement shall survive such expiration or termination for
any reason.
5. LIMITATION OF LIABILITY
FeedbackNow shall not be liable for any damages incurred by
Client arising as a result of decisions made in reliance upon the Feedbacknow
Product or Services. In no event will either party be liable for any
consequential, indirect, special, or incidental damages such as damages for
lost profits, business failure or loss, arising out of this Agreement, whether
or not such party has been advised of the possibility of such damages. FeedbackNow’s
entire liability arising out of this Agreement shall be limited to and shall
not exceed the fee paid to FeedbackNow by Client pursuant to the Purchase
Agreement(s) giving rise to the claim.
6. CONFIDENTIALITY
a) Each party hereunder may disclose to the other party
certain Confidential Information of such party or of such party’s associated
companies, suppliers, or customers. For purposes of this Agreement,
“Confidential Information” means all non-public information, in any form,
furnished or made available in connection with this Agreement by or on behalf
of one party (“Disclosing Party”) to the other party (“Receiving Party”) which
is marked confidential, restricted, or with a similar designation, or would be
understood by a reasonable person in the Receiving Party’s position to be
confidential. The terms and conditions of this Agreement and any Purchase
Agreements shall also be deemed Confidential Information. Confidential
Information will not be deemed to include information that: (i) is or becomes
known to the public through no fault of the Receiving Party; (ii) is already
known to the Receiving Party prior to its receipt hereunder or becomes known to
the Receiving Party from a third party who has a lawful right to disclose the
information; or (iii) is independently developed by the Receiving Party without
reference to Confidential Information of the Disclosing Party.
b) The Receiving Party shall use at least the same
degree of care in safeguarding Confidential Information as it uses for its own
information of like importance, but in no event less than a reasonable standard
of care. Without the prior written consent of the Disclosing Party, the
Receiving Party will not disclose Confidential Information to any other person,
except to its employees or agents who have a need to know with respect to the
purposes of this Agreement and who are subject to confidentiality obligations
with respect to such Confidential Information at least as restrictive as those
contained herein. Upon the request of the Disclosing Party upon termination of
this Agreement or at any other time, the Receiving Party shall promptly return
or destroy all Confidential Information of the Disclosing Party (including
copies thereof) in its possession or under its control. The Receiving Party
will not be required to destroy copies of any electronic records or files
containing Confidential Information which have been created pursuant to any
automatic archiving or back-up procedures which cannot reasonably be deleted,
provided that in all such cases the Receiving Party shall maintain the
confidentiality of the Confidential Information and shall not access or use any
such records or files following the date on which it would have otherwise
returned or destroyed the Confidential Information. Neither party shall be
liable for disclosure of Confidential Information if such disclosure is
required to comply with applicable laws, governmental regulations or judicial
or governmental orders, provided that the Receiving Party provides prior
written notice of such disclosure to the Disclosing Party (if allowed by law),
takes reasonable and lawful actions to avoid or minimize the extent of such
disclosure and takes reasonable steps to assist the Disclosing Party (at the
Disclosing Party’s expense) in contesting any such disclosure requirement. All
Confidential Information will remain the property of the Disclosing Party, except
to the extent that any rights with respect to such Confidential Information are
expressly granted to the Receiving Party pursuant to this Agreement. Each party
acknowledges that its breach of this section may cause irreparable damage and
hereby agrees that the other party shall be entitled to seek injunctive relief
in the event of such a breach, as well as such further relief as may be granted
by a court of competent jurisdiction.
7. INSURANCE
FeedbackNow shall, during the term of this Agreement, obtain
and maintain, at its own expense: (i) workers’ compensation coverage as
required by applicable law; (ii) commercial general liability insurance in an
amount not less than $1,000,000 per occurrence and $2,000,000 in the aggregate;
(iii) professional liability insurance for errors and omissions in an amount
not less than $2,000,000 annual aggregate and per claim; and (iv) if
applicable, auto liability insurance in an amount not less than $1,000,000 per
accident.
8. RELATIONSHIP OF THE PARTIES
This Agreement is intended to create an independent
contractor relationship between the parties. This Agreement will not be
construed to create any employment relationship, partnership, joint venture, or
agency relationship between the parties or to authorize either party to enter
into any commitment or agreement binding on the other. Under no circumstance
shall FeedbackNow’s employees be construed as Client employees. All of FeedbackNow’s
employees providing Services hereunder shall be subject to the direction,
supervision, and control of FeedbackNow. FeedbackNow shall be solely
responsible for: (a) payment of all compensation to its employees; (b)
withholding any and all appropriate taxes with respect to its employees; and
(c) complying with any applicable employment laws and ordinances including, but
not limited to, workers compensation, unemployment insurance, and wage and hour
laws.
9. COMPLIANCE WITH LAWS; GDPR
(a) Compliance. The parties agree to comply
with all applicable laws, including data protection and privacy regulations, in
connection with the transactions contemplated by this Agreement. For purposes
of this Section 9 any capitalized term shall have the meaning set out in the
GDPR and shall include the equivalent term used in other regulatory regimes
applicable to the processing of Client Personal Data pursuant to this
Agreement. FeedbackNow shall (i) process Client Personal Data only as
instructed by Client except where and to the extent otherwise required by
applicable law; (ii) ensure that persons authorized to process Client Personal
Data have committed themselves to confidentiality obligations; (iii) have no
access to identifiable client sensitive personal data such as social security
numbers, financial account numbers, or access to Special Categories of Personal
Data unless otherwise agreed to separately in writing; (iv) maintain administrative,
physical, and technical safeguards for protection of the security,
confidentiality and integrity of Client Personal Data set forth in Annex II of
the EU SCCs (as defined below) taking into account the nature of such data and
risks presented by processing; and (v) notify Client without undue delay after
becoming aware of a personal data breach that negatively impacts Client
Personal Data and shall cooperate with Client’s reasonable requests to
demonstrate compliance with the obligations set forth herein. For purposes of
the CCPA (if applicable), FeedbackNow shall not ‘sell’ Client Personal Data and
shall be a ‘service provider’ as both terms are defined in the CCPA. To the
extent FeedbackNow receives a request from a Data Subject to exercise the Data
Subject’s rights pursuant to applicable Data Protection Laws FeedbackNow shall
notify Client provided, however, Client acknowledges that Client employees may
contact FeedbackNow to exercise Data Subject rights and authorizes FeedbackNow
to respond to such requests directly without notice to Client unless notice is
deemed appropriate taking into account the scope of the Data Subject request.
Audits conducted by Client shall be conducted primarily via questionnaires
issued to FeedbackNow not more than once a calendar year unless any such audit
is at the instruction of a Supervisory Authority. Client represents that it has
all rights necessary to transfer to FeedbackNow any Client Personal Data it
makes available to FeedbackNow and authorizes FeedbackNow to use third party
vendors in connection with the provision of services. The categories of Client
Personal Data, Data Subjects and the nature of the Processing of Client
Personal Data contemplated pursuant to this Agreement are stated in Annex I to
the EU SCCs (as defined below). A list of FeedbackNow’s third-party vendors
that process client Personal Data is available to Client upon request. In the
event of a conflict between the terms of this Agreement and the SCCs (as
defined below) the SCCs shall govern.
(b) Data Transfers. Transfers of Client
Personal Data from the European Economic Area, United Kingdom or Switzerland to
countries not subject to an adequacy decision shall be governed by the Standard
Contractual Clauses adopted by the European Commission Decision of 4 June 2021,
Module 2, or Module 3 as applicable (“EU SCCs”), the International Data
Transfer Addendum to the EU Commission Standard Contractual Clauses in force 21
March 2022 modified as applicable (“UK Addendum”) and the Swiss Addendum
(“Swiss SCCs”) respectively. Execution of this Agreement shall be treated as
the execution of the SCCs which are incorporated herein by reference and
documents Client’s consent to such transfers.
10. MISCELLANEOUS