Terms & Conditions
TERMS &
CONDITIONS
These terms and
conditions (“Standard Terms”) are incorporated by reference into the request
(the “Request”) submitted by the below indicated Client or its agency (jointly
and severally, “Client”) to The Sample Network. In the event of a conflict
between these Standard Terms and theRequest , these Standard Terms shall
govern. These Standard Terms and the Request are collectively referred to
herein as the “Agreement.” 1. Acceptance/Rejection of Requests Submission of
your Request is merely an offer to The Sample Network to use commercially
reasonable efforts to provide the services and deliver the deliverables
described in the Request for the price proposed therein. The Request is not
binding on The Sample Network unless or until The Sample Network delivers
written confirmation of its acceptance of the Request to the Client. The Sample
Network reserves the right, in its sole discretion, to accept or reject any
Request. Acceptance of a Request only obligates The Sample Network to use
commercially reasonable efforts to provide the services described in the
Request. In the event The Sample Network accepts a Request , Client shall have
thirty (60) days to make its survey available to The Sample Network as required
by the Request . In the event Client fails to do so within such sixty (60) day
period, the Agreement shall immediately terminate. In the event The Sample
Network rejects a Request , it may propose an alternative price and/or scope of
work for the Request, which such alternative proposal shall be merely an offer
to the Client to provide such services and deliver such deliverables as
specified in the alternative proposal. Unless otherwise stated in such an
alternative proposal, the alternative proposal shall be valid for a period of
sixty (60) days from the date of sending. If not accepted by Client (as
confirmed in a writing received by The Sample Network) during such period, The
Sample Network’s alternative proposal shall be automatically revoked. 2. Term
of Payment Promptly after sending written confirmation of its acceptance of
Client’s Request , The Sample Network will invoice Client the amount set forth
in the Request. Unless otherwise stated in The Samples Network’s insertion
order: (i) payment of fifty percent (50%) of such amount shall be payable to
The Sample Network upon receipt of the invoice; and (ii) payment of the
remaining fifty percent (50%) of such amount shall be payable upon The Sample
Network’s delivery to Client of the deliverables set forth in the Request. In the
event The Sample Network is unable to obtain the number of surveys specified in
an Request in accordance with the terms of such Request, The Sample Network
shall: (i) reduce the Request price charged to Client by a percentage equal to
the percentage deficiency in surveys it is able to deliver in accordance with
the Request; and (ii) provide Client with a ten percent (10%) discount on its
next Request accepted by The Sample Network. Amounts unpaid by Client after
thirty (30) days shall bear interest at the rate of one-and-one-half percent
(1.5%) per month (or the highest rate permitted by law, if less) until paid in
full. In the event of any failure by Client to make payment, Client will be
responsible for all reasonable expenses (including attorneys’ fees) incurred by
The Sample Network in collecting such amounts. Without limiting any other
remedy available to The Sample Network in law or equity, in the event that
Client is in default of its obligations hereunder, including without limitation
delinquent in payments required to be made hereunder, Client shall upon notice
by The Sample Network cease-and-desist from any further use of any information,
materials or other deliverables acquired under this Agreement. All payments due
hereunder are in U.S. dollars and are exclusive of any applicable taxes. Client
shall be responsible for all applicable taxes. 3. Confidentiality During the
term of this Agreement, and until such time as the “Confidential Information”
(as defined below) is no longer protected as a trade secret or confidential
information under New Jersey law, neither party will use or disclose any
“Confidential Information” of the other party except as specifically
contemplated herein. “Confidential Information” means information that: (1) is
sufficiently secret to derive economic value, actual or potential, from not
being generally known to other persons who can obtain economic value from its
disclosure or use; and (2) is the subject of efforts that are reasonable under
the circumstances to maintain its secrecy or confidentiality. Subject to the
foregoing: (i) Confidential Information of The Sample Network includes, but is
not limited to, the sources from which it obtains survey respondents, and the
methods by which it obtains survey respondents; and Confidential Information of
either party includes, but is not limited to, technical or non-technical data,
a formula, pattern, compilation, program, device, method, technique, drawing,
process, financial data, or list of actual or potential customers or suppliers,
the advertisement before publication, and the terms of the Request.
Confidential Information does not include information that: (i) has been
independently developed by the receiving party without access to the other
party’s Confidential Information; (ii) has become publicly known through no
breach of this Section by the receiving party; (iii) has been rightfully
received from a third party authorized to make such disclosure; (iv) has been
approved for release in writing by the disclosing party; or (v) is required to
be disclosed by a competent legal or governmental authority. At the request of
the disclosing party, the receiving party shall return all of the disclosing
party’s Confidential Information to the disclosing party. 4. Warranty;
Disclaimer The Sample Network warrants that: (i) it will provide its services
hereunder in a professional and workmanlike manner; and (ii) the third parties
with which it contracts to assist it in obtaining respondents for surveys are
required by their agreements with The Sample Network to comply with the federal
CAN-SPAM Act. WITH THE EXCEPTION OF THE PRECEDING WARRANTY, THE SAMPLE NETWORK
MAKES NO WARRANTY WITH RESPECT TO ANY MATTER INCLUDING, WITHOUT LIMITATION, ITS
SERVICES AND DELIVERABLES HEREUNDER, AND EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE, AND ANY REPRESENTATION OR WARRANTY REGARDING THE
PERFORMANCE, AVAILABILITY OR FUNCTIONALITY OF ANY ASPECT OF THE SERVICES OR
DELIVERABLES HEREUNDER. 5. Limitations of Liability In the event that The
Sample Network fails to deliver any services or deliverables, including
completed surveys, in accordance with, and within the time period(s) set forth
in, the applicable Request, or in the event of any other failure, technical or
otherwise of such services or deliverables, the entire liability of The Sample
Network and the exclusive remedy of Client shall be limited to the price reduction
and future credit set forth in Paragraph 3 above. IN NO EVENT SHALL THE SAMPLE
NETWORK BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT
OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, WHETHER BASED
IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE SAMPLE NETWORK HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL THE SAMPLE NETWORK’S AGGREGATE
LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM EXCEED THE AGGREGATE AMOUNT OF THE
ORDER. Without limiting the foregoing, The Sample Network shall have no
liability for any failure or delay resulting from any governmental action,
fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo,
strikes whether legal or illegal, labor or material shortage, transportation
interruption of any kind, work slowdown or any other condition affecting
production or delivery in any manner beyond the control of The Sample Network.
Client acknowledges that The Sample Network has entered into this Agreement in
reliance upon the limitations of liability set forth herein and that the same
is an essential basis of the bargain between the parties. 6. Miscellaneous This
Agreement and the Request constitute the entire agreement of the parties with
respect to the subject matter of the Request. This Agreement shall be governed
by and construed in accordance with the laws of the State of New Jersey,
without giving effect to principles of conflicts of law. Any dispute arising
out of or relating to this Agreement shall be brought exclusively in the
federal or state courts located in the State of New Jersey, the jurisdiction
and venue of which the parties irrevocably consent to for this purpose. This Agreement
may be amended only by a writing executed by a duly authorized representative
of each party. Client shall make no public announcement regarding the existence
or content of the Request without The Sample Network’s prior written approval,
which approval shall not be unreasonably withheld. Any notices under this
Agreement shall be sent to the addresses set forth in the Request (or in a
separate writing) by facsimile or nationally-recognized express delivery
service and deemed given upon receipt. The waiver of any breach or default of
this Agreement will not constitute a waiver of any subsequent breach or
default, and will not act to amend or negate the rights of the waiving party.
If any provision contained in this Agreement is determined to be invalid,
illegal or unenforceable in any respect under any applicable law, then such
provision will be severed and replaced with a new provision that most closely
reflects the original intention of the parties, and the remaining provisions of
this Agreement will remain in full force and effect.