Bizrate Insights Inc. Program Agreement

(Effective January 1, 2017)

Bizrate Insights Inc. is pleased to provide you the opportunity to participate as a “Client” in our Program (the “Program“). Participation in the Program is subject to this Bizrate Insights Program Participation Agreement (the “Agreement“). This Agreement explains our respective obligations under the Program. By completing and submitting your Client Registration or otherwise participating in our Program, you agree to the terms of this Agreement.

A. Program Participation Terms.

  1. Your Obligations in the Bizrate Insights Program. By selecting any of the Bizrate Insights services/products (our “Program”), you agree we may deploy the Program across multiple Client customer touch-points, as chosen by you, including via email, on-site, on receipt, or by other means.
  2. Bizrate Insights Ownership of Data. You agree that, as between the parties, we own all right, title, and interest, including all intellectual property rights in the Ratings (as defined below), consumer reviews, research information, any graphs or charts created by Bizrate Insights related to the Ratings or consumer reviews and other related data about you, your products and/or your services that is collected from anyone via the Program or the Bizrate Insights Network (collectively, “Program Data”). We may use, display, reproduce, license, compile, edit, sell and distribute Program Data as we deem appropriate. Except as permitted herein, or by any separate license terms hereafter agreed upon in writing, you shall not directly or indirectly copy Program Data in whole or in part without the prior written consent of Bizrate Insights. You may make copies or slides of each graph and table contained in the Program Data for internal presentation purposes only, provided the Bizrate Insights copyright notice is affixed thereto. Inquiries regarding permission to copy or use the Program Data should be directed to Bizrate Insights. You agree that Bizrate Insights is not responsible for the content of or for the accuracy or reliability of any Program Data, including any customer or third party opinions or statements. We reserve the right, in our sole discretion, to refuse to post or to remove any Program Data we deem unacceptable or in violation of our survey or review rules (but are not obligated to, except as required by law).
  3. Program. Bizrate Insights reserves the absolute right to modify, terminate or suspend the operation of the Program, including any additional services purchased pursuant to an additional service order (“ASO”), at any time.
  4. Paid Services. If you purchase any additional services from us pursuant to an ASO, the following additional terms and conditions apply to such services:
    • Fees and Payment Terms. Upon execution of each ASO, and during each Renewal Term (as defined below), Client agrees to pay Bizrate an annual payment, for the products and services selected by Client. Client agrees to pay any sales, use, or other applicable taxes. Payment terms are net cash in U.S. dollars within thirty (30) days of Client’s receipt of invoice. Invoices are sent via email to the main contact at Client. The contract is not cancelable and Bizrate Insights will not compensate or carry over for products or services not used during the initial or any renewal term.
    • Term and Renewal. Each ASO is made as of the Effective Date listed therein and will remain in effect for a period of one (1) year from that date. Thereafter, the ASO will be automatically extended for successive annual terms (each a “Renewal Term”) at then market prices unless either party gives notice of termination to the other at least sixty (60) days prior to the expiration of the then-current Renewal Term.

B. Survey Specific Terms.

  1. If you participate in Bizrate Insights’ survey program (the “Survey Program”) the following additional terms apply. In order to maintain an unbiased ratings program, the following are not permitted and may result in termination from the Survey Program and revocation of survey privileges, including removal of syndicated reviews and published ratings from public sites:
    • Offering the buyer survey to less than 75% of orders on the order confirmation page on an ongoing basis (i.e. you must use the survey consistently without rotation to at least 75% of completed orders).
    • Encouraging or asking customers to post a positive or favorable review; reviews must be submitted by customers on their own initiative.
    • Attempting to dissuade customers from providing unfavorable reviews.
    • Helping or assisting customers in writing reviews; suggesting language for reviews.
    • Providing any financial incentive (money, discounts, products or other benefits) for writing a positive or favorable review, or for removing or repudiating an unfavorable review.
    • Requesting customers to remove previously submitted reviews that are for the correct client; clients may publicly respond to reviews via our website, noting updates and corrections made.
    • Having any employee, associate, or affiliated person post any review.
    • Altering any medal or survey code provided by Bizrate Insights.
    • Posting the Buyer Survey code anywhere other than the order confirmation page.
  2. You further represent and warrant that you will not engage in any activity to influence or modify in any way any survey we serve customers, or otherwise take any steps to undermine the ability of Bizrate Insights to administer a comprehensive, objective, fair and unbiased survey process. You further agree not to publicly announce, advertise or promote your Program rating or survey performance (collectively “Rating”) to anyone without our prior written approval and in compliance with the promotional guidelines and other rules we provide to you. We reserve the right to take any action if you breach any of the above obligations including, without limitation, terminating your participation in the Program and/or “re-rating” your business.

C. General Program Terms and Conditions. The following terms apply to our Program and any other products or services we may provide you.

    1. Accurate Information. You represent that all information you provide or direct us to about your business, products, services or otherwise, including without limitation, via our Program registration process, and order forms, is accurate, complete and current. You are responsible for keeping such information up-to-date and accurate.
    2. Client Account. To participate in our Program you will be required to set up and maintain a Client Account (your “Account“).
      • Setup. We may impose any lawful restrictions on your ability to establish an account. YOU ARE RESPONSIBLE FOR KEEPING ANY ID AND PASSWORD, AND OTHER ACCOUNT INFORMATION, CONFIDENTIAL AND ARE FULLY RESPONSIBLE FOR ALL ACTIVITIES THAT OCCUR UNDER YOUR ACCOUNT (INCLUDING THE ACTIONS OF YOUR AGENTS, EMPLOYEES, REPRESENTATIVES), WHETHER OR NOT YOU AUTHORIZED SUCH ACTIVITIES. You agree to notify us immediately of any breach of security or unauthorized use of your account or ID and/or password by email to bizrateinsights@bizrate.com.
    3. Intellectual Property Rights.
      • Our Program, The Bizrate Insights Network, and our products, services and content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, computer programs, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation and interactive features (collectively, “Bizrate Insights Content”) and all intellectual property rights to the same are owned by us, our licensors, or both. Additionally, all copyright, trademarks, service marks, trade names and trade dress that may appear in connection with the Program or Bizrate Insights Network are owned by us, our licensors, or both (collectively, “Company Marks”). You do not acquire any right, title or interest in any Bizrate Insights Content or Company Marks and shall not use any of the same except as expressly permitted under this Agreement. We reserve any rights in and to the Bizrate Insights Content or Company Marks not expressly granted in this Agreement.
      • We acknowledge your right, title, and interest in and to your trademarks, service marks, trade names, logo and content on your Website(s) (“Client Marks”). You reserve any rights in and to Client Marks not expressly granted in this Agreement.
      • Subject to the terms and conditions herein and for the term of this Agreement: (i) you grant Bizrate Insights a nonexclusive, nontransferable, revocable and royalty-free right and license to use the Client Marks for the purposes of providing the services hereunder including the right to use, display and reproduce Client Marks in the normal course of business for all Bizrate Insights merchants such as: inclusion in anonymous benchmarking; identifying Client in a ratings webpage; as a Circle of Excellence Winner, if applicable; in ratings syndication to a search engine or other websites; etc. and to identify Client in Bizrate marketing materials, and for associated publicity and related purposes; and (ii) we grant you a nonexclusive, nontransferable, revocable and royalty-free right and license to use the Company Marks solely in connection with Program and subject to guidelines Bizrate Insights may offer from time-to-time. Each party acknowledges and agrees that its use of the other’s marks will not create in such party any right, title or interest in such marks and that all such use of the marks of the other party and the goodwill generated thereby will inure to the benefit of the other party.
    4. Data. Bizrate Insights may, in connection with Bizrate Insights Content you place on your Website (e.g., medals, icons, etc.), collect certain non-personally identifiable information from you and/or users (“Analytics Data”). As between the parties, Bizrate Insights owns all right, title, and interest, including all intellectual property rights, in and to the Analytics Data. We may use, display, reproduce, compile, edit, license, sell and/or distribute Analytics Data in connection with our business. For avoidance of doubt and notwithstanding anything in this or other agreements between the parties, Analytics Data is not considered your confidential or proprietary information. If Client is to receive consumer personally identifiable information hereunder, (i) such data is provided to Client on a confidential basis for its internal use (including data analysis and marketing) and shall not be delivered or disclosed to any third party except as provided above without our prior written consent, (ii) Client represents and warrants that it will use such data in compliance with Client’s own privacy policy and all applicable laws and regulations pertaining to the privacy rights of individual data subjects.
    5. Confidential Information. Bizrate Insights recognizes that, in the process of providing services to Client, Client may provide Bizrate Insights with confidential and proprietary information regarding Client’s business, the disclosure of which would be to Client’s detriment, which information if communicated in writing shall be marked “Confidential” or if communicated verbally shall be stated to be confidential. Bizrate Insights shall use at least the same degree of care in safeguarding such confidential and proprietary information as it uses for its own information of like importance, but in no event less than a standard of reasonable care.
    6. Indemnification. You hereby agree to defend, indemnify and hold harmless Bizrate Insights and its affiliates, licensees, vendors, contractors, agents, and employees (collectively, “Agents”), from any and all liabilities, costs and expenses, including, without limitation, reasonable attorney’s fees and costs, that may arise from your participation in the Program or any other Bizrate Insights services, your breach of the terms of this Agreement, any content or materials that you provide us, any consumer’s use of your Website(s), or purchase or attempted purchase and/or use of any of your products or services.
    7. Warranty Disclaimers. YOU EXPRESSLY AGREE THAT YOUR PARTICIPATION IN THE PROGRAM IS AT YOUR OWN RISK. THE SERVICES OFFERED IN THE PROGRAM ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER BIZRATE INSIGHTS NOR ANY OF ITS AGENTS MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE PROGRAM, ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM OR ANY OTHER BIZRATE INSIGHTS PRODUCT OR SERVICE, OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. BIZRATE INSIGHTS HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ITS AGENTS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION: (I) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE PROGRAM, OR ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM OR ANY OTHER BIZRATE INSIGHTS SERVICE, OR AS TO THE CUSTOMERS, CLICKS, TRAFFIC OR OTHER BENEFITS TO BE GENERATED BY THE PROGRAM, OR THAT THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE; AND (II) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
    8. LIABILITY LIMITATIONS. ANY LIABILITY OF BIZRATE INSIGHTS OR ANY OF ITS AGENTS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION OR DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO AN AGGREGATE AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID TO BIZRATE INSIGHTS FOR YOUR PARTICIPATION IN THE MERCHANT PROGRAM IN THE PRIOR SIX (6) MONTH PERIOD. IN NO EVENT SHALL BIZRATE INSIGHTS OR ANY OF ITS AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUES, LOSS OF GOODWILL, DEFAMATION OR LOSS OR DAMAGE TO DATA THAT ARISE FROM ANY ASPECT OF YOUR PARTICIPATION IN THE PROGRAM OR ANY BREACH OR ERROR BY BIZRATE INSIGHTS WHETHER OR NOT BIZRATE INSIGHTS HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation on such damages shall apply whether or not Bizrate Insights is able to correct any problem or error, and whether or not Bizrate Insights has breached any warranty or obligation, or failure of the essential purpose of any other remedy, it being the intention of the parties to allocate the risk of such damages as provided herein in all circumstances, and you acknowledge that Bizrate Insights would not have entered into this Agreement but for this limitation on such damages.
    9. Termination. If you are dissatisfied with the Program or with any of the terms and conditions contained herein, your sole and exclusive remedy is to terminate your participation in the Program. Notwithstanding anything contained in this Agreement to the contrary, we may, in our sole discretion, suspend or terminate your account and/or discontinue your participation in the Program or any other Bizrate Insights service or product at any time. All decisions made by us in this matter will be final and you agree that we shall have no liability to you or anyone else with respect to such decisions. No Client shall have any vested right or enforceable interest to participate in the Program.
    10. Notices. We may give general notices to participating Clients by postings on the Business Services portion of www.bizrateinsights.com (using commercially reasonable efforts to notify you via email of any such postings), and you agree to be bound thereby. Notices specific to you will be sent, if possible, by electronic mail to your email address, or otherwise by U.S. mail, overnight delivery service or in person. You may give notice to us by email to bizrateinsights@bizrate.com, or otherwise by U.S. mail, overnight delivery service or in person.
    11. MANDATORY ARBITRATION & Dispute Resolution.
      • In the event of any dispute between the parties arising from or in any way related to this Agreement, appropriate representatives of each party shall meet, within thirty (30) days after the written request of either party, and attempt to negotiate or mediate a mutually-agreeable resolution before either party shall commence any arbitration proceeding. If such negotiation or mediation does not resolve the issue to the mutual satisfaction of the parties within sixty (60) days after such written request, then all disputes arising out of, relating to or connected with this Agreement will be exclusively resolved under confidential binding arbitration by the American Arbitration Association (AAA) held in New York County, New York pursuant to the applicable AAA commercial rules for arbitration.
      • Any arbitrator’s award may be entered in any court having jurisdiction. No arbitration proceeding or other legal action may be commenced regarding any disputes arising out of, relating to or connected with this Agreement more than one (1) year after the date that the alleged breach or other grounds for dispute originally occurred. Each party retains the right to seek judicial assistance: (i) to compel arbitration; (ii) to seek injunctive relieve in the courts of any jurisdiction as may be necessary and appropriate; and (iii) to enforce any decision of the arbitrator, including the final award. The arbitration proceedings contemplated by this Agreement shall be as confidential and private as permitted by law.
    12. Amendment; Additional Terms.
      • In certain instances it may be necessary to update or modify this Agreement to reflect updates to our business practices and policies, and for other reasons. We also may, in some instances, need to provide you with operating rules, guidelines, policies or additional terms that govern your participation in our Program (“Additional Terms”). You agree that we may at any time provide you with Additional Terms, or update or modify this Agreement, as appropriate or necessary. To the extent any Additional Terms conflict with this Agreement, the Additional Terms will control.
      • In the event we modify this Agreement or any Additional Terms, we will send notice to the main contact at the email address we have on file and by posting notice of such modifications in the Business Services portion of www.bizrateinsights.com. Unless you notify us within ten (10) days of the day we send the email notice to you or post the modifications consistent with this Agreement, whichever occurs last, you will be deemed to have accepted the new terms. Notwithstanding the foregoing, your continued participation in the Program after the posting of modifications to this Agreement and/or any Additional Terms will signify your assent to and acceptance of the new terms.
    13. Choice of Law/Venue. This Agreement shall be governed by the laws of the State of New York without giving effect to any conflicts of laws rules which may result in the application of the law of any other jurisdiction. Each party hereto irrevocably and unconditionally (i) agrees that any suit, action or proceeding against it arising out of this Agreement shall be brought in any New York State court or Federal court sitting in New York County, (ii) submits to the jurisdiction of such courts, and (iii) fully waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding.
    14. No Trial by Jury/Class Action. We each hereby irrevocably waive any right to a trial by jury or to join claims with those of others in the form of a class action or similar procedural device for any dispute arising under this Agreement, whether brought in court or arbitration. If for any reason any court or arbitrator holds that the class action restriction set forth in his Section is unconscionable or unenforceable, then the terms of Section 10 (“MANDATORY ARBITRATION & Dispute Resolution”) shall not apply and the classwide dispute must be brought in court.
    15. Independent Contractor. Nothing in this Agreement is intended or should be construed to create a joint venture, partnership, franchise, agency or similar legal arrangement between Bizrate Insights and you or any other Client. We each operate as independent contractors under this Agreement.
    16. Miscellaneous. If there is any conflict between the English version of this Agreement and any translated version we may provide, we each agree that the English version will control in all instances. No waiver by either of us of any breach or default under this Agreement shall be deemed a waiver of any other breach or default. Neither the course of conduct between any member nor trade practices shall act to modify any provision of this Agreement. The section headings used in this Agreement are for convenience only and shall not be given any legal import. If any part of this Agreement is deemed unlawful or unenforceable for any reason, we agree that only that part of the Agreement shall be stricken and that the remaining terms in this Agreement shall not be affected. You may not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. This Agreement (including any Additional Terms incorporated by reference) constitutes the entire agreement, and supersedes all previous written or oral agreements, between you and Bizrate Insights in connection with the Program.

© 2017 Bizrate Insights, Inc.