Terms of Service
[Last Updated: January, 2022]
Wizer Feedback LTD. and its Affiliates (“Wizer”, “Company”, “us” or “we”) are the developers, owners and operators of an intelligent automated research platform and digital research wizards for researching and understanding customer’s end-users (“Consumers“) needs, and gaining insights regarding the customer’s target audience, as described in the applicable Research Proposal (as such term is defined below) (“Platform” or “Services” respectively).
This Master Service Agreement (“MSA”) and the Data Processing Agreement (“DPA”) govern the customers (“Customer“) use and interaction with the Platform and the Services. The Customer and the Company may each be referred to as a “party” and collectively “parties“.
1.1. “Affiliate” means any entity controlling, controlled by, or under common control with the Company.
1.2. “Agreement” means collectively this MSA, the applicable Research Proposal, any signed executed agreement between the parties (unless explicitly exempted), and any and all exhibits which are incorporated by reference in each of these documents, including the DPA.
1.3. “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by the Customer to access and use the Platform and the Services in accordance with the Agreement. Except as expressly stated herein and for the Purpose of these MSA, “Customer” shall mean “Customer and its Authorized Users”.
1.4. “Confidential Information” means and includes all non-public confidential and proprietary information disclosed by either party (“Disclosing Party“) to the other party (“Receiving Party“) through the parties’ engagement under the Agreement, that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, can or should reasonably be understood as confidential. Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the Receiving Party by a third party without restriction on the disclosure; or (d) is independently developed by the Receiving Party.
1.5. “Customer Data” means all data, information and other content of any type and in any format, including an attachment as document or as URL provided by the Customer to the Company or uploaded by the Customer to the Platform in order to be provided with the Services. Customer Data will include, where applicable, data and information Wizer has obtained on the Customer’s behalf through applicable surveys, recipients response, or third parties. Customer Data may also include, where applicable, Personal Data (as defined under applicable data protection regulation) such as contact information and Confidential Information.
1.6. “Documentations” means set of digital or printed technical user manuals, notes, instruction, summary and any other supporting documentation as may be provided by the Company to the Customer.
1.7. “Intellectual Property” means all intellectual property rights of every kind and description, including without limitation: (i) rights in or to trademarks and service marks (whether or not registered), trade names, logos, and other designations of the source of origin, together with all goodwill related to the foregoing, (ii) patents and patent applications, (iii) rights in or to copyrights, whether or not registered, (iv) rights in or to trade secrets and confidential information, including without limitation know-how, technology methods, ideas, and inventions, (v) rights in the software and computer code (whether in source code, object code or any other form) and (vi) all applications and registrations of any of the foregoing;
1.8. “Research Proposal” means the Company’s written proposal governed by this MSA, describing the Services and the terms for purchasing the Services, as mutually executed by Customer and the Company, including all applicable related documentation such as the Company’s Service Level Agreement (“SLA“) and any document or other, describing the research criteria.
1.9. “Work Product” means all works of authorship related to the reports, presentations, results, data insights and materials provided by the Company to Customer, as part of the Services.
2. SERVICES AND LICENSE GRANT
2.1. Subject to Customer’s compliance with the provision of the Agreement, and solely for duration of the Term, the Company hereby grants the Customer a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to access and use the Platform and the Services therein.
2.2. The Company reserves the right to modify, change, update, enhance, improve, remove, replace, add or make any other changes to, or discontinue, or cease, temporarily or permanently, the Platform or any part and content (such as infrastructure, security, technical configurations, etc.), however, Company’s modification to the Platform will not result in a material reduction in the level of performance or availability of the applicable Services provided to the Customer for duration of the Research Term, unless provides the Customer with appropriate notice and in such event, the Customer will be able to terminate the applicable Research Proposal immediately in accordance with the provisions of Section 5. Notwithstanding the above, the Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, as such Patches are generally released by the Company from time to time.
2.3. The Customer will be provided with certain number of Authorized Users, as agreed in the Research Proposal, which are assigned to the Customer online account and dashboard (“Customer Account” or “Account”).
2.4. It is hereby agreed that the Company shall not be responsible for any harm caused by Customer’s Authorized Users, including individuals who were not authorized to have access to the Platform but who were able to gain access due to Company’s negligence or unauthorized disclosure of Account’s credentials. You alone will be responsible for all activities that occur under your Accounts or as a result of your access to the Platform and Services, and agree to notify the Company immediately of any such unauthorized use. The Customer hereby acknowledge that except as otherwise agreed to in writing, the total number of Authorized Users will not exceed the number outlined in the Research Proposal.
2.5. The Customer undertakes not to: (i) transfer, sell, assign, sublicense or make any disposition of the Platform or any portions thereof, including any documentation related to the Platform, to any other party; (ii) decompile, disassemble or reverse-engineer the Platform in any form or by any means; (iii) modify the Platform; (iv) interfere with or disrupt the integrity or performance of the Platform and the Services; (vi) attempt to gain unauthorized access to the Platform’s software or code; or (v) copy the Platform or any feature, function or user interface thereof, or its related platforms or networks.
2.6. Failure to comply with the obligations set forth herein, may result, at Company’s sole discretion, in the suspension of the Customer Accounts, without derogating from any other remedy Wizer may be entitled to under the Agreement or any applicable law.
3. REPRESENTATIONS AND WARRANTIES
3.1. Each party hereby represents and warrants that: (i) it has the full legal authority to be engaged by and perform its obligations under the Agreement; and (ii) nothing contained in the Agreement nor the performance thereof shall place the relevant party in breach or default of any obligation or other agreement, law or regulation by which it is bound or to which it is subject, or requires the consent of any person or entity.
3.2. The Company represents and warrants that: (i) it owns or has the legal rights in the Platform; and (ii) it will provide the Services in a timely and professional manner which will conform to and operate in accordance with the Documentation, the Research Proposal and industry standards.
3.3. Customer hereby represents and warrants that: (i) it will ensure that all its Authorized Users complies with the terms of the Agreement and with the appropriate security measures and access procedures, and will immediately suspend an Authorized User’s access to the Platform and use of the Services as soon as it becomes aware of such Authorized User’s violation of the Agreement ; (ii) it will not impersonate another Wizer representative or provide false identity information to gain access to or use the Platform; (iii) it will suspend all Accounts for individuals who are no longer authorized to access those Accounts (e.g., employees who are no longer work for the Customer) ; and (iv) it will comply with any Documentation concerning the access to and use of the Platform.
4. PAYMENTS, FEES AND TAXES
4.1. Payment terms shall be in accordance with the terms of the applicable Research Proposal. Except as provided in the Agreement or otherwise agreed in writing by the parties, the Customer acknowledges that all payment terms are non-cancelable or non-refundable whether or not the Services and the Platform are actively used by the Customer.
4.2. All amounts shall be expressed and paid in US Dollars, and will be paid against a duly issued invoice sent by the Company within seven (7) days, unless otherwise set forth in the Research Proposal. Further, All amounts payable by Customer under the Agreement are exclusive of all taxes, including without limitation, sales, use, value-added, withholding or other taxes, customs, levies, or duties imposed by taxing authorities on transactions, and the Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Wizer’s net income.
4.3. In the event of late payments, the Company will assess interest on overdue payments at the rate of one and a half percent (1.5%) per month, or the maximum rate allowed by law, without thereby derogating from other rights and remedies afforded to the Company under the Agreement and/or under any applicable law. Notwithstanding anything stated herein, the Company may terminate the Agreement including any Research Proposal or suspend Customer use and access to the Platform and Services, if the Customer fails to make payments and fees.
5. TERM AND TERMINATION
5.1. The Agreement commences upon the Parties signature on a Research Proposal (“Effective Date“), and shall continue thereafter for twenty four (24) months (“Initial Term”) with an automatic renewal of 12 months repetitively (“Renewal Term“) unless either party informs the other party, in writing, of its intent not to renew the applicable Research Proposal at least sixty (60) days prior to the expiration of the Initial Term or the Renewal Term, as applicable. Each Research Proposal will have a separate term (“Research Term“); however, this MSA, including the DPA, shall remain in full force and effect during any Research Term. Except as otherwise explicitly stated herein, the Research Term may not be terminated for convenience.
5.2. If a party materially breaches any provision of the Agreement and fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching party, the non-breaching party may terminate the. Termination under this section does not limit either party from pursuing any other remedies available to the party, including, but not limited to, injunctive relief.
5.3. Upon expiration or termination for any reason of the Agreements, the following will apply: (i) Customer shall cease access to or use the Platform and the Services; (ii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control, except as otherwise agreed by the parties or as required by applicable laws; and (iii) expiration or termination for any reason of the Agreement shall not derogate from rights and obligations accrued prior to the effective date of expiration or termination, and shall not relieve the Customer from its obligation to pay the applicable consideration that remains unpaid or limit either party from pursuing other available remedies.
5.4. All sections detailed herein which by their nature are intended to survive termination shall survive termination or expiration for any reason.
6.1. Except as set for the herein, and to the extent required under applicable law, the Receiving Party agrees to keep confidential and not disclose, use, copy, or distribute any Confidential Information to anyone, other than to those of its employees and contractors, if and to the extent that such employees and contractors have a need to know such Confidential Information for the purpose of Receiving Party’s performance of the Agreement, and provided that such employees and contractors are bound to abide by all the obligations concerning such Confidential Information contained in the Agreement. The obligations outlined in this Section shall survive the termination or expiration of the Agreement for a period of 3 years following the termination. All Confidential Information shall be and remain the property of the Disclosing Party. The disclosure of the Confidential Information shall not be construed as granting the Receiving Party any right, title, or license, whether express or implied, with respect to the Confidential Information or to its related Intellectual.
6.2. Each party acknowledges that its breach of this Section may cause the other party extensive and irreparable harm and damage, and agrees that the other party shall be entitled to injunctive relief, without bond, to prevent use or disclosure of its Confidential Information not authorized by this Agreement, in addition to any other remedy available to the other party under applicable law.
7.1. The Intellectual Property and all other rights, title and interest of any nature in and to the Platform, the Services and Documentation (including all modifications, enhancements, upgrades, customizations and derivative works thereof, but excluding the Customer Data and the Work Product) (“Company’s Intellectual Property”) are and shall remain the exclusive property of the Company or its licensors. Except as expressly permitted in the Agreement, Customer has no right in and to the Company’s Intellectual Property and shall not use, adopt, modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, exploit any of the Company’s Intellectual Property or register any trade names or symbols that are identical, or confusingly similar, to any such trademarks or trade names used by the Company. Nothing in the Agreement shall be construed as transferring any right, title, or interest to the Customer or any third party unless explicitly stated hereunder. The Company and its licensors reserve any and all rights not expressly granted in the Agreement. The provisions of this section shall remain in full force and effect after termination or expiration of the Agreement for whatever reason.
7.2. All Work Product identified in the applicable Research Proposal in connection with the performance of the Services, shall be owned exclusively by and be the property of the Customer (“Customer’s Intellectual Property“). Notwithstanding anything to the contrary in the Agreement, Customer hereby acknowledges that the Company may retain and use any the Customer’s Intellectual Property in order to continually enhancing its Services, provided however that the Customer’s Intellectual Property is aggregated data which does not personally identify the Consumers. Customer shall have no claims with respect to such use.
7.3. The Customer undertakes and acknowledges that it is solely liable for the Customer Data uploaded to the Platform and processed by the Company. The Customer further acknowledges and agrees that the Company does not monitor or review the Customer Data. Except as provided herein, the Company expressly disclaims any and all liability in connection with the Customer Data.
7.4. The Company will protect the confidentiality of the Customer Data residing in the environment of the Company, in accordance with the Company security practices. In the event that the Customer Data include Personal Data (as defined under applicable data protection regulation), the parties undertake to comply with the terms of the DPA .
8.1. Each party (“Indemnifying Party“) shall indemnify, defend and hold harmless, the other party and its respective affiliates, officers, directors, shareholders, or representatives (“Indemnified Party“) from any and all demands, judgments, awards, losses, damages, expenses, claims and liabilities, and all related costs, including reasonable legal fees incurred by Indemnified Party as a result of or arising out of a third party claim arising from: (i) a breach of the Agreement or violation of applicable law by the Indemnifying Party; (ii) Indemnifying Party’s gross negligence, willful misconduct or fraud; and (iv) Indemnifying Party infringement or mis-appropriation of such third party’s intellectual property rights or the privacy of any third party. Notwithstanding the above, the Company shall not be obligated to indemnify the Customer if such claim arises from the misuse of the Platform or Service.
8.2. The obligations under this section will only apply if the Indemnified Party: (i) promptly notifies the Indemnifying Party, in writing, regarding the claim; (b) permits the Indemnity Party to control the defense and settlement of the claim; and (c) reasonably cooperates with the Indemnity Party (at the Indemnity Party’s expense) in the defense and settlement of the claim. In no event will Indemnity Party agree to any settlement of any claim that involves any negative commitment of the Indemnified Party, without its consent.
9. LIMITATION OF LIABILITY AND DISCLAIMER
9.1. The Work Product and any other information presented on or generated by the Company as statistical analysis in connection with the research or a studies contemplated under the Agreement as part of the Services, and any other results, conclusions, inference, deduction, analysis, benchmarks, statistics, actionable answers or aggregate data complied, calculated and processed in connection therewith, are all assumptions based, statistically driven, compiled, among others by data obtained from Consumers, or originated from Customer or other third parties, with no assurance as to the accuracy or validation of such information.
9.2. Except as otherwise expressly stated hereunder and in the SLA, where applicable, and to the maximum extent permitted by law, the Services, Platform, Work Products, Documentation, features and any related documentation, software or component therein are provided on an “as is” and “as available” basis without warranty of any kind. the company disclaims all warranties, either express or implied, and makes no representation nor it extends any warranty of any kind, with respect to the Services and the Platform including, without limitation, warranties of merchantability or fitness for a particular purpose. The company assumes no responsibility or liability for: (i) any unauthorized access to the Platform or use of the Services; (ii) any interruption or cessation of transmission to or from the Platform; (iii) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Platform and Services; (iv) the operation of the Services in combination with the customer systems, or with any other hardware, software, websites or data not provided by the Company; (vi) the performance of the Services in a manner consistent with your requirements, specifications or expectations; and (v) any loss of data or content including third party content. In no event shall the Company be liable for any damages whatsoever including, without limitation, indirect, consequential, special, punitive or incidental damages, or damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss, arising out of the access to or use of the Platform or Services, even if the Company has been advised of the possibility of such damages.
9.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENTS, AND TO THE EXTENT PERMITED BY APPLICABLE LAW, IN NO EVENT SHALL COMPAY’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES IN CONNECTION WITH THE TERMS OF THE AGREEMENT SHALL EXCEED THE AMOUNTS ACTUALLY PAID BY THE CUSTOMER UNDER THE APPLICABLE RESEARCH PROPOSAL FOR THE RESEARCH TERM DURING WHICH THE EVENT GIVING RISE TO SUCH CLAIM OCCURRED, LESS AMOUNTS ALREADY PAID BY THE COMPANY REGARDING SUCH CLAIM, UNDER THE SAME RESEARCH PROPOSAL FOR ANY PREVIOUS LIABILITIES.
9.4. No actions may be brought against the Company arising from or in connection with the Agreement later than one (1) year following the effective date of the expiration or termination for any reason of the Agreement.
10.1. The Company reserves the right to modify, correct, or amend the terms of this MSA at any time in its sole discretion, without any notice, effective immediately. In the event of a material change we will provide the Customer with prior notice before implementing such changes. The most current version of this MSA will be reflected under the “Last Updated” date that appears in the header of this MSA.
10.2. The Agreement and any claim, controversy, or dispute arising under, related to, or otherwise in connection with the Agreement shall be interpreted, construed, and enforced in accordance with the laws of USA applied without giving effect to any conflicts of law principles. The parties agree that any lawsuit that may be brought with respect to the Agreement shall be brought and tried exclusively in the competent courts located within the state of New York, USA.
10.3. Each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, fiduciary or agency relationship between the parties for any purpose.
10.4. The Agreements and the rights and obligations therein may not be assigned or transferred by the Customer without the prior written consent of The Company. The Company may assign the Agreement at any time by providing the Customer a written notice.
10.5. All notices, requests, demands, waivers and other communications required or permitted hereunder must be in writing and shall be deemed to have been duly given (i) immediately if provided by electronic mail or to the Customer e-mail address as record in the Customer Account or the Research Proposal; (ii) one day after delivery by receipted mail delivery. All correspondence, notices and technical documentation exchanged between the parties shall be provided in the English language only.
10.6. The Company shall not be liable for any delay or failure to perform its obligations according to the Agreement if and to the extent that such delay or failure to perform is caused or otherwise brought about by circumstances beyond Company’s reasonable control, including strikes, lockouts, labor troubles, restrictive government or judicial orders or decrees, riots, insurrection, war, terrorism, Acts of God or inclement weather, which the Company is unable to prevent by the exercise of reasonable due diligence.
10.7. Should any or all of the provisions of the MSA be determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of the MSA shall not in any way be affected or impaired by such determination and will remain in full force and effect, and the provision affected will be construed to be enforceable to the maximum extent permissible by law.
10.8. A delay or omission by the Company to exercise any right under the Agreement shall not be construed to be a waiver of such right. All waivers by the Company must be in writing to be effective.
10.9. In case of any conflict between the provisions of this MSA and the provisions of a Research Proposal, the provisions of the Research Proposal shall prevail as to the subject matter of such conflict.