QDP’s Survey Manager
By using QDP’s Survey Manager you agree to, and are bound by, this Agreement. If you do not agree with any of the terms of this Agreement, do not access or use QDP’s Survey Manager or any information contained within it.
If any modification is unacceptable to you, you shall cease using QDP’s Survey Manager and be able to terminate your Licence. If you do not cease using QDP’s Survey Manager, you will be deemed to have accepted the change.
1. Legal Status
Each Customer hereby warrants that if it is a corporation or other legal entity, Customer is validly formed and existing under the laws of its jurisdiction and has duly authorized its agent or agents to enter into this Agreement and, if an individual, Customer is of the age of majority in his or her place of residence.
2. Licences and Payment
2.1. If Customer purchases a Licence or is granted a free Licence to use QDP’s Survey Manager (“Licence”), Customer shall pay all fees, as applicable, to QDP as well as VAT and any other applicable taxes, as published in QDP Price Guide and available on QDP’s Survey Manager. QDP may change such fees at any time and at its sole discretion, provided that any such change shall become effective at the end of the current term of Customer's Licence. QDP will provide Customer with at least 60 days prior notice of any change in fees to allow Customer to cancel their Licence prior to the end of the current term.
2.2. By granting of a Licence QDP will create an account (“Account”) on QDP’s Survey Manager for use by Customer. Each account allows unlimited usage of QDP’s Survey Manager for the licence period agreed and/or charged.
2.3. The Licence is on a continuous service basis. This means that, subject to the terms and conditions of this Agreement, QDP shall automatically renew Customer's Licence at the end of its term unless Customer's Licence is cancelled by giving 30 days’ notice in writing, by email or by using the Contact Us page within QDP’s Survey Manager or on any of QDP’s web sites. Customer will be charged a renewal rate equal to the rate for the immediately preceding Licence, unless QDP has notified Customer of any new rate in advance. A cancellation of a Licence requested by Customer will become effective on the date that the current Licence period expires.
3. Additional Fees and Payment
If Customer purchases additional services, for example printing of questionnaires or undertaking of phone calls by QDP (“Additions”), Customer shall pay for these Additions as well as VAT and any other applicable taxes, as published in QDP Price Guide and available on QDP’s Survey Manager and as agreed with QDP at the time of purchase.
4. QDP Materials
Certain content and information provided as part of QDP’s Survey Manager, including, without limitation, documents, graphics and images that are not Customer Content (as defined below) (collectively, the "QDP Materials") are provided to you by QDP and are the copyrighted and/or trademarked work of QDP or QDP's contributors. QDP grants you a limited, personal, non-exclusive and non-transferable license to use and to display the QDP Materials solely for your personal use in connection with QDP’s Survey Manager.
Except as expressly permitted in this Agreement, you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the QDP Materials in any manner. This Licence terminates automatically, without prior notice to you, if you breach any term of this Agreement. Except for the limited rights granted by this Agreement, you acknowledge that you have no right, title or interest in or to any QDP Materials.
5. Customer Content
5.1. Customer acknowledges and agrees that:
(a) all survey questions, information, data, text, software, music, sound, photographs, images, video, survey responses, messages or other materials communicated, submitted or transmitted by Customer or respondents of Customer's surveys through QDP’s Survey Manager (collectively, "Customer Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Customer Content originated,
(b) Customer, and not QDP, is responsible for all Customer Content that Customer or respondents of Customer's surveys upload, post, email, distribute, communicate, or otherwise make available using QDP’s Survey Manager or that is otherwise made available through the use of Customer's Licence, whether or not authorized by Customer,
(c) by using QDP’s Survey Manager, Customer may be exposed to Customer Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libellous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, and
(d) by communicating or transmitting any Customer Content using QDP’s Survey Manager, Customer grants to QDP an irrevocable, non-exclusive, royalty-free and worldwide license to use such Customer Content for the purpose of operating QDP’s Survey Manager, and Customer warrants to QDP that it has the right to grant such license for such purposes.
5.2. Customer further acknowledges and agrees that QDP does not control the Customer Content originating from Customer, respondents to Customer's surveys or other Customers of QDP, and does not guarantee the accuracy, integrity or quality of such Customer Content. Notwithstanding the foregoing, QDP may, but is not obligated to, review all Customer Content and block, modify, terminate access to, or remove any such Customer Content that QDP, in its sole discretion, considers being non-compliant with any of the requirements of this Agreement.
5.3. QDP reserves the right to purge Customer Content over 5 years old from its databases at any time and from time to time without notice. Where a Customer terminates their use of QDP’s Survey Manager QDP will retain Customer Content for a minimum period of 1 year before deletion. QDP shall not be liable for any purging, deletion or failure to retain any such Customer Content.
5.4. QDP may disable Customer's Account and Customer's access to QDP’s Survey Manager and QDP may recover from Customer any losses, damages, costs or expenses incurred by QDP resulting from or arising out of Customer's non-compliance with any provision of this Agreement.
5.5. Customer may use and modify all template content (“Templates”) provide as part of QDP’s Survey Manager. QDP do not warrant the accuracy or applicability of any of Templates and once used forms part of Customer Content.
6. Customer Conduct
In connection with Customer's use of QDP’s Survey Manager, and without limiting any of Customer's other obligations under this Agreement or applicable law, Customer:
(a) shall comply with all local and international laws and other rules, regulations, policy and procedures applicable to Customer relating to unsolicited commercial email messages, defamation, privacy, obscenity, intellectual property, data protection, privacy, or child protective email address registries, to which Customer may be bound that are related to Customer's use of QDP’s Survey Manager;
(b) shall not upload, post, email, distribute, communicate, transmit or otherwise make available any Customer Content: (i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libellous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, (ii) that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party, (iii) that Customer does not have the right to make available by reason of any law or any other relationship, or (iv) that comprises or includes any "junk mail", "spam", "chain letters", "pyramid schemes", or any similar form of solicitation;
(c) shall not use QDP’s Survey Manager to send surveys, polls, or other materials to individuals under the age of majority in his or her place of residence ("Minors") unless Customer is permitted to do so under all applicable laws, or to harm minors in any way, and shall not send surveys, polls, or other materials to Minors that would subject QDP to any local or international law, rule or regulation governing children's privacy, rights of personality or otherwise related to protecting minors;
(d) shall not impersonate any other person or entity, including QDP, or a QDP official;
(e) shall, if Customer uses the Services to send a survey using email, not mislead the recipients of that survey that Customer may have the ability to associate individual responses to that survey with the individual email addresses to which that survey was sent by stating that Customer has no such ability. QDP recommends that such Customers' surveys include the following notice:
"Please be advised that your responses to this survey may not be treated as anonymous by the survey sender."
(f) shall not interfere with or disrupt QDP’s Survey Manager or servers or networks connected to QDP’s Survey Manager, or disobey any requirements, procedures, policies, or regulations of networks connected to QDP’s Survey Manager;
(g) shall not engage in excessive usage of QDP’s Survey Manager, as determined by QDP in its sole discretion, including usage that adversely affects the speed, responsiveness, or functionality of the QDP’s Survey Manager, or disrupts the availability of the QDP’s Survey Manager for other Customers;
(h) shall not attempt to damage, deny service to, hack, crack, reverse engineer, or otherwise interfere with QDP’s Survey Manager in any manner;
(i) shall not upload, post, email, distribute, communicate, transmit, or otherwise make available any viruses or similar malicious software that may damage the operation of a computer, or QDP’s Survey Manager; and
(j) shall not upload survey links to message boards or newsgroups that are not relevant to the subject matter of the survey, or that prohibit such uploading without QDP's prior written consent.
Customer further acknowledges and agrees that QDP may cooperate with any governmental authority in connection with any investigation into Customer's use of QDP’s Survey Manager, including use in contravention of applicable laws, and may, in accordance with applicable laws, disclose any Customer Content, and any other information pertaining to the Customer or to Customer's use of QDP’s Survey Manager, to such governmental authority in connection with any such investigation.
7. Indemnity by Customer
Customer shall indemnify, defend and hold harmless QDP, its affiliates, and their respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including legal fees on a full indemnity basis) arising out of or in connection with:
(a) Customer's use of QDP’s Survey Manager, including Customer's use of or reliance on any information or materials (including survey or poll results or responses) obtained through the use of QDP’s Survey Manager,
(b) any other use of the Services by a third party using Customer's Account (whether or not authorised by Customer),
(c) Customer's breach of this Agreement, including any of Customer's representations and warranties under this Agreement, or
(d) Customer's contravention of any law applicable to Customer.
8.1. This Agreement shall automatically become effective upon Customer's first use of QDP’s Survey Manager, and continue indefinitely until it is terminated.
8.2 With respect to Customers in the United Kingdom who are dealing as consumers (as defined by the U.K. Electronic Commerce Regulations 2002 and the Consumer Protection (Distance Selling) Regulations 2000) ("U.K. Consumers"), U.K. Consumers shall have the right to cancel this Agreement within seven (7) working days from the date of the day following the day the U.K. Consumer has entered into this Agreement by providing written notice of cancellation to QDP.
8.3. QDP may cancel Customer's Account (if Customer has one) and automatically terminate this Agreement immediately by notice to Customer in the event that Customer breaches any of Customer's representations, warranties, or obligations under this Agreement (including any of Customer's obligations under Section 5 (Customer Content)) or contravenes any applicable law.
8.4. Customer may cancel Customer's Account (if Customer has one) and terminate this Agreement by written notice to QDP in the event that QDP materially breaches any of its obligations under this Agreement, if such breach is not cured within sixty days of QDP's receipt of notice of breach from such Customer.
8.5. Upon termination of this Agreement for any reason, Customer shall immediately cease all use of QDP’s Survey Manager, and Customer acknowledges and agrees that QDP may, in its sole discretion, take any measures QDP reasonably deems necessary or desirable to prevent further use by Customer of QDP’s Survey Manager, including by blocking Customer's IP address. Customer further acknowledges and agrees that upon termination of this Agreement, QDP shall not be obliged to retain any Customer Content (including survey or poll results or responses) or to provide the same to Customer, but may elect to do so in its sole discretion.
8.6. Termination of this Agreement for breach as defined in Section 8.3 (Termination) above shall not entitle Customer to a refund of any unearned Licence fees previously paid by Customer.
The following will survive this agreement:
(a) all of Customer's representations, warranties and indemnities given under this Agreement;
(b) all disclaimers of warranties, and limitations and exclusions of liability; and
(c) the last sentence of Section 4 (QDP Materials), and each of Sections 5 (Customer Content), 7 (Indemnity by Customer), 8.4 (Termination), 8.5 (Termination), 8.6 (Termination), 10 (Limitations and Exclusions of QDP's Liability), 11 (Intellectual Property Rights), and 13 (General).
9. Provision of QDP’s Survey Manager
9.1. QDP reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, QDP’s Survey Manager or any part thereof, or Customer's access thereto, and to modify, suspend or delete QDP’s Survey Manager or any part thereof, and QDP will use commercially reasonable efforts to provide reasonable advance notice of changes that significantly impact QDP’s Survey Manager in a negative manner. In the case of changes that significantly impact QDP’s Survey Manager in a negative manner, Customer is entitled to cancel Customer's Licence, if any. Customer acknowledges and agrees that QDP shall not be liable to Customer, or to any third party, for any modification, suspension or discontinuance of the Services or any modification, suspension or deletion of the Site.
9.2. Without limiting Section 9.1 (Provision of QDP’s Survey Manager), if Customer engages in excessive usage of QDP’s Survey Manager (as described in Section 6(g) (Customer Conduct)), QDP may take such action as it considers necessary to prevent such excessive usage and to restore the availability of QDP’s Survey Manager to other Customers, including by limiting or suspending Customer's access to QDP’s Survey Manager, or by cancelling Customer's Licence and terminating this Agreement.
9.3. Customer acknowledges and agrees that QDP’s Survey Manager is provided "as is" and "with all faults," and that, QDP has no responsibility or liability for the loss or deletion of, or failure to receive, process, or store any Customer Content (including survey or poll results or responses) maintained or transmitted using QDP’s Survey Manager.
9.4. Customer acknowledges and agrees that the information, software, products, and services contained in or available through QDP’s Survey Manager, including information, software, products and services made available by other Customers of QDP’s Survey Manager, may include inaccuracies or errors.
9.5. Customer further acknowledges and agrees that Customer, and not QDP, is responsible for evaluating the accuracy, reliability, completeness, and usefulness of any information obtained through the use of QDP’s Survey Manager.
9.6. QDP makes no representations or warranties regarding the suitability, reliability, availability, timeliness, quality, or lack of viruses, or other harmful components of QDP’s survey manager, or the accuracy of such information, software, products and services.
9.7. To the fullest extent permitted by applicable law, QDP, its affiliates, and their respective directors, officers, employees, servants and agents hereby disclaim all warranties, express or implied, with regard to such information, software, products or services, including any warranty of non-infringement of third party rights, and the implied warranties of merchantability and fitness for purpose.
10. LIMITATIONS AND EXCLUSIONS OF QDP'S LIABILITY
10.1. In no event shall QDP, its affiliates, or their respective directors, officers, employees, servants or agents be liable for any direct, indirect, punitive, incidental, special or consequential damages whatsoever, including damages for lost profits, lost revenue, loss of use or data, or costs of cover, arising out of or in any way connected with this agreement, whether based on contract, tort, strict liability or any other legal theory, even if QDP has been advised of the possibility of such damages, including damages arising out of:
(a) the use or performance of, the delay in providing, the failure to provide, or the inability to use, QDP’s Survey Manager, or
(b) any information, software, products or services contained in or available through QDP’s Survey Manager, including information, software, products and services made available by other customers of QDP’s Survey Manager.
Customer specifically agrees that QDP, its affiliates, and their respective directors, officers, employees, servants and agents shall not be liable for:
(c) unauthorized access to or alteration of any transmissions or data, any material or data sent or received or not sent or not received, or any transactions entered into through QDP’s Survey Manager or in reliance upon any information obtained through the use of QDP’s Survey Manager,
(d) any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of a third party's rights, including intellectual property rights, or
(e) any content sent using, or included in, QDP’s Survey Manager by any third party.
If customer is dissatisfied with any portion of QDP’s Survey Manager, customer's sole and exclusive remedy is to terminate this agreement and discontinue using QDP’s Survey Manager.
10.2. In the event that, notwithstanding the foregoing exclusions of liability, QDP, any of its affiliates, or any of their respective directors, officers, employees, servants or agents is liable to customer for any amounts under this agreement under any theory of recovery, whether based on contract, tort, strict liability or otherwise, QDP's (or such affiliates', director's, officer's, employee's, servant's or agent's, as applicable) total liability in respect of such amounts shall not exceed the greater of:
(a) the amount of one hundred pounds sterling (£100.00), and
(b) the amounts actually received by QDP from customer under this agreement within the previous 12 months.
10.3. Nothing in sections 10.1 and 10.2 of the agreement shall limit QDP's or its affiliates' or their respective directors', officers', employees', servants', or agents' liability for: (a) death or personal injury caused by negligence (as such term is defined in the unfair contract terms act 1977); (b) fraud; (c) misrepresentation as to a fundamental matter; or (d) any liability which cannot be excluded or limited under applicable law.
10.4. Customer acknowledges and agrees that without the foregoing exclusions and limitations of liability, QDP would not be able to offer QDP’s Survey Manager, and that such exclusions and limitations of liability shall apply, even if they would cause customer's remedies under this agreement to fail of their essential purpose.
11. Intellectual Property Rights
QDP’s Survey Manager and all information and screens appearing on QDP’s Survey Manager, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of QDP Services Limited, its affiliates, or its third party licensors. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. QDP reserves all rights in QDP’s Survey Manager that are not expressly granted. Nothing in this Agreement shall be deemed to assign or transfer to Customer any rights to any such intellectual property. Customer further acknowledges and agrees that QDP Materials and other content made available to Customer through the Services may be subject to the intellectual property rights of third parties.
13.1. QDP may provide references, frames or hyperlinks to internet websites maintained by third parties. QDP does not warrant that it has reviewed such third party websites and makes no claims, representations or warranties regarding such third party websites or the contents of the same. QDP is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.
13.2. Customer acknowledges and agrees that Customer, and not QDP, is responsible for determining which laws may apply to Customer's use of QDP’s Survey Manager and assessing Customer's obligations under such laws.
13.3. QDP is registered with the Information Commissioner for marker research purposes. Registration number Z9243582.
13.4. All notices and other communications required or permitted to be given by QDP to Customer under this Agreement will be deemed to be properly given on the date when:
(a) posted on QDP’s Survey Manager,
(b) sent by email to the email address for Customer last recorded by QDP, or
(c) sent by postal mail to the postal address for Customer last recorded by QDP.
Customer may give notices to QDP under this Agreement by email to email@example.com
13.5. This Agreement comprises the entire agreement between QDP and the Customer relating to QDP’s Survey Manager. Both Customer and QDP confirm that they have not relied upon, and shall have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by any party (whether or not a party to this Agreement) unless that agreement, warranty, statement, representation, understanding or undertaking is expressly set out in this Agreement.
13.6. The use of the terms "includes" and "including", and similar terms, shall be deemed not to limit what else might be included.
13.7. This Agreement shall be governed by the laws of England. Customer may not assign this Agreement without QDP's prior written consent, which may be withheld in QDP's sole discretion.
13.8. QDP may assign this Agreement at any time to the successor in interest in connection with a merger, consolidation or other corporate reorganization in which QDP participates or to the purchaser of all or substantially all of QDP's assets to which QDP’s Survey Manager relates.
13.9. In any dispute arising out of this Agreement, the substantially prevailing party shall be entitled to payment of its reasonable legal fees and costs.
QDP IS THE PUBLISHER OF QDP’S SURVEY MANAGER. THE HOST OF QDP’S SURVEY MANAGER IS RACKSPACE.