Customer Service Agreement
This Customer Service Agreement (this "Agreement") is by and between Primary Domain, a California LLC, DBA Primary Domain ("Primary Domain") and the company (or other entity) acknowledging this Agreement ("Customer").
1. Provision of Service.
(a) Primary Domain will provide Customer access to the Internet application service (the "Service") which will permit the development, distribution and reporting of online surveys, reports and forms by Customer (the "Customer Data") pursuant to the terms of this Agreement.
(b) Primary Domain may change Service features and functionality, as well as the terms and conditions of this Agreement, from time to time. Notice of such changes will be posted on the Primary Domain Web site (the "Web Site"), which Customer will review periodically.
(c) Any and all Service features and functionality that are provided on either a free or trial basis may be changed or suspended at any time with no notification requirement by Primary Domain.
(d) Customer is responsible for its own compliance with this Agreement, including without limitation the compliance of its employees, officers, agents, and any third party that Customer invites to participate in the Service.
(a) Customer's use of the Service may result in fees as will be set forth on the Web Site. Fees for the Service will not be incurred until the Customer registers for a paid, subscription account. Primary Domain may change the Service fees and charges from time to time by sending Customer an invoice, in electronic, paper or any other form, or by posting fees owed on the Web Site. Customer agrees to pay said fees within thirty (30) days of receipt of such invoice. Customer will pay on all amounts past due, that have not been disputed specifically in writing and in reasonable good faith, an interest charge of one and one-half percent (1.5%) per month computed from the due date of each payment, or the maximum rate permitted by California law. Customer will be liable for attorneys' and collection fees arising from Primary Domain's efforts to collect unpaid balances.
(b) All payments will be in U.S. dollars.
(c) Customers may select credit card payment options, pursuant to which Primary Domain will charge fees directly to a Customer's credit card, when such option is made available by Primary Domain and pursuant to such terms and conditions as Primary Domain may post on the Web Site from time to time.
(d) Automatic subscription renewal - by subscribing to Primary Domain, Customer agrees that their subscription will renew automatically on a monthly or annual basis as selected by the customer and will continue to renew until cancelled.
(e) If Customer chooses to discontinue Primary Domain Services, customer must cancel their subscription via the Primary Domain site. Customer will be responsible for all charges incurred up to the date the Customer cancels their subscription. Primary Domain will not prorate Customer's invoice for a partial month's usage following cancellation.
(f) Recurring billing: Customer consents that Primary Domain may charge their credit card on a recurring basis without additional authorization and/or invoice Customer for payment by check for 1. Monthly subscription charges if monthly subscription option selected, 2. Annual subscription charges if annual subscription option selected and 3. Monthly amounts due for the "per response" fee charged for all survey responses exceeding the monthly number included with the subscription.
(g) Customer agrees to pay all state and local sales, use, property, or other taxes (collectively, "Chargeable Taxes"), except for taxes on Primary Domain's net income which may be assessed against Primary Domain with respect to this Agreement. Primary Domain may include Chargeable Taxes in its invoices, in which event Customer will pay to Primary Domain the taxes so invoiced.
(h) All overdue balances and accounts will be forwarded to Dun & Bradstreet on the 60th day of non-payment.
(i) If Customer reactivates an account that was previously deactivated due to non-payment, a $20.00 reactivation fee will be charged to Customer.
3. Limitations on Use of Service and Service Software.
(a) As used herein, "Software" refers to any software incorporated into the Service. Customer will not permit, assist, or allow others to, reverse engineer, decompile, disassemble, re-engineer, or otherwise discover, recreate, or attempt to discover or recreate the Software or its source code. Customer will not modify or attempt to modify the Software or sublicense or charge others to use or access the Software or the Service. Customer will not use the Software or the Service in any way not expressly authorized by this Agreement.
(b) Customer acknowledges that the Services is not intended for permanent storage and agrees not to use the Service for archiving or back-up purposes. Customer will not store "mission critical" data on the Service, including without limitation data pertaining to power generation, military or national security, or any function to sustain or rescue the health or well-being of any person.
(c) From time to time, Primary Domain may add new features to the Service that are described as "beta" ("Beta Features"). Customer acknowledges that Beta Features may be untested, non-functional, and/or partly functional features of the Service. If Customer elects to use a Beta Feature, it does so at its own risk. Notwithstanding the provisions of the first sentence of Section 5(a), Primary Domain does not warrant that the Beta Features will be provided with due care. Customer will back-up all data it adds to the Beta Features and will not rely upon the functionality of the Beta Features for any purpose whatsoever. Except as specifically provided in this Section 3(c), the Beta Features will be considered part of the Service and all provisions of this Agreement relating to the Service will apply to the Beta Features.
(d) Use of Service to send unsolicited email (spam): Customer may not use the Software and/or Service in any manner to send unsolicited email (spam). Doing so may result in immediate termination of Customer's account and Customer shall be responsible for all expenses incurred to have Primary Domain and/or the ISP (Internet Service Provider) hosting Primary Domain's servers removed from any and all email black lists (lists used to identify and block senders of spam) to which Primary Domain and/or the ISP were added as a result of Customer's violation of this agreement.
4. Security, Privacy, and Access.
(a) Primary Domain will exercise reasonable care to prevent any unauthorized person or entity from gaining access to Customer Data. Each party will promptly notify the other of any unauthorized access to or use of Customer Data or passwords. The parties will use reasonable efforts to take remedial measures to address any such unauthorized access. Primary Domain will not be liable for any damages incurred by Customer arising out of or related to use of the Service, including without limitation in connection with any unauthorized access to or disclosure of Customer Data, resulting from the actions of Customer, any third party, or from the failure of electronic or other security measures.
(b) Primary Domain has no obligation to monitor the Service. Primary Domain has the right to monitor the Service and to disclose any information arising out of it, including without limitation Customer Data, as necessary to satisfy any law, regulation, or demand of government or of internal auditors or to protect Primary Domain or its customers. Primary Domain may remove or refuse to post any materials that it finds, at its sole discretion, to be offensive, undesirable, in violation of this Agreement, or otherwise unacceptable. However, Primary Domain has no obligation to remove any such materials.
(c) Customer will not use the Service to transmit or store any data that may be considered obscene or pornographic, that contains defamatory material, or that violates federal, state, or local law.
(d) Customer will not disclose any account passwords to any third party not authorized to use the Service.
(e) Customer grants Primary Domain the right to display Customer's company or entity name and logo on its customer list, which is used for Primary Domain's marketing purposes (brochures, web site, etc.) Customer's authorized representative may request removal from this list at any time by written request.
5. Limited Warranty; Limitation of Liability.
(a) Primary Domain warrants that the Service will be provided with due care. EXCEPT FOR THE FOREGOING, PRIMARY DOMAIN DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE. Furthermore, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, WILL PRIMARY DOMAIN BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE USE OR INABILITY TO USE THE SERVICE. In no event will Primary Domain's total liability for damages, losses, or causes of action, whether in contract or tort, including without limitation negligence, either jointly or severally, exceed the aggregate dollar amount paid by Customer to Primary Domain in the twelve (12) months prior to the claimed injury or damage.
(b) Primary Domain is not liable for the accuracy, truthfulness, or validity of any data entered by Customer or provided through the Service. Primary Domain is not liable for the loss of any Customer Data.
(c) Customer's sole and exclusive remedy, if it is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of Primary Domain is to discontinue using the Service.
Customer will indemnify and hold harmless Primary Domain and its affiliates, employees, officers, directors, agents, licensors, successors and assigns from all damages and liability, including without limitation reasonable attorneys' fees, incurred as a result of:
(a) Customer's violation of its obligations under this Agreement,
(b) the negligent or willful acts of Customer, or
(c) the violation by Customer of Primary Domain's or any third party's rights, including without limitation privacy rights, other property rights, trade secret, proprietary information, trademark, copyright, or patent rights, and claims for libel, slander, or unfair trade practices in connection with the use or operation of the Service. Customer's obligation to indemnify will survive the expiration or termination of this Agreement by either party for any reason.
7. Termination and Cessation of Service.
(a) Either party may terminate this agreement at any time for any reason. The following obligations will survive the termination of the Agreement for any reason: (i) indemnification obligations set forth in Section 6 above; (ii) fee obligations set forth in section 2 above that become due under this Agreement before termination; and (iii) any other provision hereof where the context of such provision indicates an intent that it will survive the term or termination of this Agreement.
(b) Primary Domain may deny Customer access to all or part of the Service without notice if Primary Domain believes, in its sole discretion, that Customer may have violated any of the terms of this Agreement.
8. Interruption of Service.
(a) PRIMARY DOMAIN WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO INTERRUPTION OF, OR DEFECTS IN TRANSMISSION OF, THE SERVICE, including without limitation interruptions or defects due to inability to access the Internet or any part thereof, equipment modifications, upgrades, relocations, or repairs. No reduction of payments will be made in the case of temporary interruption of or defects in transmission of the Service.
(b) Primary Domain will not be liable for interruption of or delays in transmission of the Service caused by acts of God, fire, water, riots, acts of Government, acts or omissions of Internet backbone providers, or any other causes beyond Primary Domain's control.
(a) This Agreement constitutes the entire Agreement between Primary Domain and Customer regarding the subject matter hereof and expressly supersedes any prior or contemporaneous written or oral agreements between the parties regarding the subject matter hereof, including without limitation any offer, purchase order, or other similar instrument in writing. This Agreement may not be amended, altered, or changed except by a written agreement signed by the duly authorized representatives of both parties.
(b) In the event that any provision of this Agreement is held to be unenforceable, such provision will be construed as nearly as possible to reflect it original intent and the remainder of this Agreement will remain in full force and effect.
(c) Customer's rights in this Agreement are personal and are not assignable. Primary Domain may assign its rights and obligations under this Agreement to third parties.
(d) This Agreement is to be construed in accordance with and governed by the internal laws of the State of California (as permitted by Section 1646.5 of the California Civil Code or any similar successor provision) without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. The parties agree that any claim, controversy, or dispute arising out of or relating to this Agreement will be settled by final and binding arbitration to be conducted in Riverside County, California in accordance with the commercial arbitration rules of the American Arbitration Association. The decision of the arbitrator(s) will be binding; provided that Primary Domain may bring an action in a court of law (i) involving allegations of personal injury to a third party, or (ii) for injunctive or other equitable or extraordinary relief.
(e) The remedies provided in this Agreement and at law or in equity are cumulative and not exclusive. The failure by either party to exercise any right or remedy under this Agreement or otherwise available at law or in equity will not be deemed a waiver of any subsequent right or remedy.
(f) No person or entity who is not a party to this Agreement will derive any rights whatsoever hereunder as a third party beneficiary of this Agreement.
The parties acknowledge that they have read the terms and conditions of this Agreement and hereby agree to be bound thereby. This Agreement will become effective upon Customer's acceptance by electronic acknowledgment on the Web Site.