EXHIBIT C

SURVEY SITE PARTICIPATION TERMS OF USE

 

 

Clarity Research

Survey Site Terms of Use

Effective Date: November 23, 2021

PLEASE READ THESE TERMS OF USE CAREFULLY.  IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE AND THE SURVEY AVAILABLE THROUGH THE SERVICE.

THESE TERMS REQUIRE YOU ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.

1. Survey Site & Terms: Clarity Research (the “Company”) offers individuals the ability to participate in digital automotive industry survey(s) offered via a website or other online service (collectively, the “Service”).  Individuals who choose to participate and provide feedback to any survey offered via the Service (“you” or “Participant”) will be asked to review questions and submit answers regarding products and services offered by various vehicle original equipment manufacturers (each an “OEM”).  Company does not reveal which specific OEM sponsors any particular survey so Company can ensure opinions collected through the Service are unbiased.  The Service is operated and administered on behalf of a specific OEM who has hired Company as a service provider to conduct the survey.  As used in these Terms, the terms “we,” “us,” and “our” shall be deemed to collectively refer to both Company and the OEM.

 

These Terms of Use (the “Terms”) govern your access to and use of the Service, including, without limitation, the feedback you provide when submitting your answers to survey questions as well as any software (the “Software”) we make available in connection with your survey feedback submissions.  The Service and Software are offered to you upon the condition of your acceptance of these Terms.  If you do not agree to any of the terms and conditions hereof, your sole and exclusive remedy is to stop using the Service and Software and not submit answers to a survey.  Unless explicitly stated otherwise, any new features or products that change, augment, or enhance the current Service will be subject to these Terms.  By using the Service, you acknowledge and accept the Service’s Privacy Policy [https://www.clarityresearch.com/privacy-policy] and consent to the collection and use of your information in accordance with the Service’s Privacy Policy [https://www.clarityresearch.com/privacy-policy].  Your use of the Service and Software constitutes your acceptance of this Terms and consent to the Privacy Policy.  IF YOU DO NOT AGREE TO THE TERMS OF THESE TERMS, YOU MAY NOT USE OR ACCESS THE SERVICE OR SOFTWARE.

 

To become a Participant of the Service, you must be invited by Company by email or otherwise to join the Service.  If you receive an invitation to participate in the Service, you will be asked to provide specific information on the Service, including, without limitation, your full name, e-mail address, home address, phone number, date (or year) of birth, among other information.  Company will use your e-mail address to send you notices and reminders of upcoming focus group sessions offered, among other things.  You represent and warrant that: (a) you are a legal resident and are physically located in the United States (including D.C.); (b) you have attained the age of majority in the state in which you reside (and are, at the very least, no less than eighteen (18) years of age); and (c) any information that you submit is true and correct in every way. 

In some instances, both these Terms and separate guidelines, rules, or terms of service, setting forth additional or different terms and/or conditions, will apply to your use of the Service (in each such instance, and collectively, “Additional Terms”).  To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.

2. Content, Ownership, Limited License and Rights of Others: 

 

A.         Content.  The Service contains a variety of: (i) materials and other items relating to Company and its products and services, and similar items from our licensors and other third parties, including all layout, information, questions, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of OEM and Company (collectively,  “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). 

B.         Ownership.  The Service (including past, present, and future versions) and the Content are owned or controlled by OEM, Company and/or our licensors and certain other third parties. All right, title and interest in and to the Content available on the Service is the property of Company or our licensors or certain other third parties and is protected by United States and international copyright, trademark, patent or other intellectual property rights to the fullest extent possible. 

C.         Limited License.  Subject to your strict compliance with these Terms and any Additional Terms, Company grants each Participant a limited, personal, revocable, non-transferable, non-assignable, and non-exclusive right and license to download (temporary storage only), display, view, use, play, and/or print one (1) copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only.  Your right to use the Service and the Software is personal (i.e., for you only).  Company reserves the right, at any time, in its sole and absolute discretion, to modify, suspend, terminate, or otherwise discontinue, temporarily or permanently, the Service (or any part thereof), with or without providing you with notice thereof.  The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Company’s sole discretion, and without advance notice or liability.  In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.  Company reserves the right to cancel, suspend, terminate, or refuse access to the Service to anyone at any time, in its sole and absolute discretion. You may not use the Service or the Software, in whole or in part, for any purpose that is unlawful in any way, that may cause Company (or any of its licensors) legal liability of any kind or nature (either civilly or criminally), that may disrupt the Service or disrupt others’ use of the Service, that may be considered by Company to be any of the following: harassing, libelous, invasive of anyone’s privacy, defamatory, obscene, illegal, harmful, incendiary, discriminatory, prejudice, offensive, hostile, and/or pornographic, that may be prohibited by these Terms.  You may also not distribute, modify, transmit, reuse, repost or use the Content on the Service or the Software for any public or commercial purpose of any kind or nature, without Company’s prior written permission.  You agree not to modify, rent, lease, loan, reproduce, duplicate, copy, sell, distribute, otherwise exploit, or create derivative works based on, the Service and/or the Software, in whole or in part, or any Content contained therein. 

D.         Rights of Others.  When using the Service, you must respect the intellectual property and other rights of Company and others.  Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.  Company respects the intellectual property rights of others.

3. Service and Content Use Restrictions:

 

A.         Service Use Restrictions.  You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) transmit any chain letters or junk email to other Participants; (iii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iv) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Company; (v) reverse engineer, decompile, disassemble, reverse assemble, or modify any site source or object code or any software or other products, services, or processes accessible through any portion of the Service; (vi) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, Company, or other Participants of the Service; (vii) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the Service; or (viii) otherwise violate these Terms or any Additional Terms.

 

B.         Content Use Restrictions.  You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party application or websites, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Company or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.

 

C.         Availability of Service and Content.  Company may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them) in whole or in part for any reason, in Company’s sole discretion, and without advance notice or liability. 

 

D.         Reservation of All Rights Not Granted as to Content and Service.  These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service.  No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise.  All rights not expressly granted to you are reserved by Company and its licensors and other third parties.  Any unauthorized use of any Content or the Service for any purpose is prohibited.

 

4. Survey Feedback/Participation Content:

 

A.         All information, feedback, data, text, software, music, sounds, photographs, illustrations, files, images, graphics, photos, comments, responses, content, data, questions, suggestions, videos, messages, goods, products, services, and/or any other materials of any kind or nature and the ideas contained therein posted by Participants or otherwise submitted on or through the Service  in connection with surveys or otherwise (individually and collectively, “Participant Content”) shall be the sole responsibility of the Participant from whom such Participant Content originated.  This means that you, and not Company, are entirely responsible for all Participant Content that you upload, post, transmit, or otherwise make available, directly or indirectly, on the Service, including, without limitation, personally identifying information and/or other sensitive data of any kind.  Company does not control the Participant Content posted by you or other Participants on the Service and as such, does not guarantee the accuracy, integrity, or quality of any such Participant Content.

 

B.         Pursuant to this Section 4(B), as between you and OEM, OEM will solely own all Participant Content provided on or through the Service.  You hereby irrevocably assign, transfer, convey and set over to OEM, in perpetuity, throughout the universe, in any and all languages, all right, title and interest (including, without limitation, all intellectual property rights therein or related thereto), of any kind or nature in and to any Participant Content posted or transmitted by you on or through the Service, including, without limitation: (a) all rights of contract, copyright, trademark, patent, trade dress, and all other rights, throughout the world and in perpetuity without restriction of any kind; (b) the right to modify, publish, prepare derivative works from, and/or publicly display the Participant Content, alone or as part of any other work, in any form, media, or technology, whether now known or hereafter developed throughout the world; and (c) the exclusive right to license, sublicense or otherwise transfer any or all such rights to any other party, in whole or in part.  All Participant Content belongs solely to the OEM.  However, to the extent, if any, that any Participant Content is not assignable, you automatically grant, and represent and warrant that you have the right to grant to OEM, a worldwide, royalty-free, irrevocable, perpetual, fully-sub-licensable, right and license to use, host, reproduce, modify, adapt, publish, edit, translate, distribute, perform, combine with information provided by third parties, create derivatives work of, and/or display such Participant Content alone, or as a part of other works, in any form, media, or technology, whether now known or hereafter developed throughout the world at any time.  Any such Participant Content may be used by OEM or licensed to others by OEM for any purpose, including, without limitation, for reproduction, disclosure, transmission, publication, broadcast, and posting. No compensation will be paid or due you with respect to OEM’s or its sublicensees’ use of the Participant Content pursuant to this Section 4.  You expressly acknowledge that OEM may, in its sole and exclusive discretion, utilize any portion of the Participant Content as the name of or a portion of a product or service that will be sold to the public and you hereby waive any right to receive royalties or compensation from sales of such product or service. You agree that the consent of no third parties is required to grant the rights hereunder.   In the event that under any current or future law of any jurisdiction any of the rights granted hereunder are subject to any right of reversion, revival, restoration or termination, you hereby irrevocably grant OEM, and its successors and assigns, the exclusive rights of first negotiation for thirty (30) days and last refusal for fifteen (15) days (to match any third-party offer) before exercising such right.  To the fullest extent allowable under any applicable law, you hereby irrevocably waive and assign to OEM the benefits of any provision of law known as “moral rights” or “droit moral,” or any similar law in any country or territory throughout the world. You represent, warrant, and promise to Company that: (a) the Participant Content is original with you, that you are the owner of the Participant Content, that you have the exclusive right to submit the Participant Content to the Company, and that you have the power and authority to grant the OEM any and all rights in the Participant Content; (b) you own the Participant Content submitted by you on the Service, and (c) your posting or transmitting of Participant Content on or through the Service does not, and will not, infringe, violate, or otherwise misappropriate the privacy rights, publicity rights, copyrights, trademark rights, patent rights, trade secret rights, contract rights, confidentiality rights, or any other rights of any kind or nature of any person or entity at any time (or otherwise violate any law, rule, or regulation, and/or the terms hereof). 

C.         At OEM’s request, you will execute, acknowledge and deliver to Company or OEM any and all additional documents and instruments, and shall do any and all things, which Company or OEM may reasonably deem necessary, desirable or proper to evidence and/or effectuate any and all of OEM’s rights and privileges under these Terms and/or to carry out the intent and purposes of these Terms.  In the event you fail to take any action or execute any document or instrument as required pursuant to the terms of these Terms within five (5) business days (or less, if required by the exigencies of development, production, distribution or exploitation) following OEM’s request, including, without limitation, any action, document or instrument necessary to assign to OEM any rights of copyright or necessary for OEM’s exploitation of its rights hereunder, registering or renewing the copyright in the Participant Content, you hereby nominate and appoint OEM, his/her irrevocable attorney-in-fact with the right, but not the obligation, to do all such acts and execute all such documents on your behalf, but for OEM’s benefit.  Such power is coupled with an interest and is irrevocable.  You agree that neither the Company nor OEM assumes any obligation to: (i) return the Participant Content submitted, (ii) compensate you in any way for the use of the Participant Content, or (iii) proceed with negotiations of any kind respecting the Participant Content.

 

D.         Please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation ideas, concepts, inventions, or designs for vehicle or vehicle accessories, music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”).  Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed Participant Content and assigned to us as set forth in these Terms.  In addition, OEM retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials.  OEM’s receipt of your Unsolicited Ideas and Materials is not an admission by OEM of their novelty, priority, or originality, and it does not impair OEM’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.  Each Participant acknowledges that other participants may have created ideas and concepts contained in their Participant Content that may have familiarities or similarities to his/her own Participant Content, and that he/she will not be entitled to any compensation or right to negotiate with OEM because of these familiarities or similarities.  Notwithstanding any custom and practice to pay an individual for an idea (if any), nothing herein shall create an implied or express contract to compensate Participants for their Participant Content and there is no obligation for OEM to pay or otherwise compensate Participants for any of their ideas or materials in any communications with OEM, whatsoever.

 

5. Indemnification: You hereby agree to indemnify, defend, and hold harmless OEM, Company, as well as Company’s suppliers (including Content suppliers), Company’s technology licensors (including, but not limited to, Qualtrics), shareholders, parents, subsidiaries, affiliates, officers, directors, employees, agents, assigns, and advisors, from and against any and all losses, liabilities, claims (including claims without legal merit or brought in bad faith), demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, executions and liens, including reasonable attorneys’ fees and costs (whether brought by third parties or otherwise) relating to or arising out of, directly or indirectly: (a) your use of the Service (including, without limitation, the Software and/or any Participant Content); (b) your breach of any representation, warranty, agreement, or covenant contained in these Terms; (c) any Participant Content or other information or material posted or transmitted by you on or through the Service through your Device, even if not submitted by you, including, without limitation, if such infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (d) your acts and omissions; (e) your negligence, intentional misconduct, or violation or alleged violation of any law or any rights of any third party; and (f) Company’s use of the information that you submit to us (including your Participant Content).  Company reserves the right (but is not obligated), at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you hereunder, and in such event, you will have no further obligation to provide indemnification for such matter; provided, however, that you will use best efforts to cooperate with Company in such defense and shall be fully responsible for all costs associated therewith.  To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract by OEM, Company and/or any of Company’s suppliers (including Content Suppliers), affiliates, partners (including Company), subsidiaries, agents, and employees.

 

6. Linked Sites and Advertisements; Dealings with Third Parties:

 

A.         Linked Sites and Advertisements.  The Service may also contain other links to sites that are controlled by third parties (“Linked Sites”).  Those Linked Sites are not controlled by Company, and Participants acknowledge that Company is not responsible for the content of any such Linked Site or any link contained in a Linked Site.  Company provides such links only as a convenience, and the inclusion of any link does not imply endorsement by Company of any Linked Site.  Company does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items.  Furthermore, Company is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Sites.  Finally, Company will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Sites.  Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Sites.  Company disclaims all liability in connection therewith.

 

B.         Dealings with Third Parties.  Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like).  Company disclaims all liability in connection therewith.

 

7. Wireless Features:

 

A.         Wireless Features.  The Service may offer certain features and services that are available to you via your wireless Device.  These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”).  Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features.  Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance.  Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device.  You should check with your carrier to find out what plans are available and how much they cost.  Contact your carrier with questions regarding these issues.

 

B.         Terms of Wireless Features.  You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties.  Further, we may collect information related to your use of the Wireless Features.  If you have registered via the Service for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.

8.  DISCLAIMER OF WARRANTIES: SUBJECT TO APPLICABLE LAW, YOUR USE OF THE SERVICE, THE SOFTWARE, AND ALL CONTENT OF ANY KIND CONTAINED THEREIN OR DERIVED THEREFROM, IS AT YOUR SOLE RISK.  OEM, COMPANY AND COMPANY’S PARTNERS AND SUPPLIERS PROVIDE THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED FROM OR THROUGH THE SERVICE, “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. OEM, COMPANY AND COMPANY’S PARTNERS AND SUPPLIERS MAKE NO WARRANTY THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, AND/OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; OR (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, REWARDS (IF ANY), OR OTHER MATERIALS OR INFORMATION OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.  ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. WITHOUT LIMITATION ON THE FOREGOING, WE ARE UNDER NO OBLIGATION TO STORE AND/OR PROTECT YOUR PARTICIPANT CONTENT, SO IT IS ADVISABLE THAT YOU MAINTAIN YOUR OWN COPY AT ALL TIMES.  NOT ALL STATES PERMIT ALL OF THE ABOVE DISCLAIMERS, SO THEY MAY NOT ALL BE APPLICABLE TO YOU.

 

9. LIMITATION OF LIABILITY: SUBJECT TO APPLICABLE LAW, IN NO EVENT WILL OEM, COMPANY OR ANY OF COMPANY’S PARTNERS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR FAILURE OF PERFORMANCE, ERRORS, OMISSIONS, INTERRUPTIONS, DELETIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, COMMUNICATION LINE FAILURES, THEFT OR DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE SERVICE, OR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR THIS TERMS, DIRECTLY OR INDIRECTLY, EVEN IF OEM, COMPANY OR ANY OF COMPANY’S PARTNERS OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL OEM, COMPANY OR ANY OF COMPANY’S PARTNERS AGGREGATE LIABILITY TO YOU OR ANY THIRD-PARTY ARISING FROM OR RELATING TO THE SERVICE OR THIS TERMS (OR ANY OTHER TERMS ENTERED INTO BY YOU WITH COMPANY IN CONNECTION WITH YOUR USE OF THE SERVICE) EXCEED $50.00.  SOME STATES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

 

10. Independent Review: YOU ACKNOWLEDGE THAT YOU HAVE READ THIS TERMS AND THAT YOU AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED ALL ASPECTS OF THIS TERMS AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN THIS TERMS WITH YOUR OWN COUNSEL AND YOU ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN.

 

11. ARBITRATION TERMS AND WAIVER OF RIGHT TO BRING COLLECTIVE ACTION:  MOST PARTICIPANT CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CUSTOMER'S SATISFACTION BY EMAILING INFO@CLARITYRESEARCH.COM. IN THE UNLIKELY EVENT THAT COMPANY’S CONSUMER ASSISTANCE CENTER IS UNABLE TO RESOLVE YOUR CONCERNS, WE EACH AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERAL JURISDICTION TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO THE TERMS OF THIS AGREEMENT. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT.  ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CAN AWARD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS TO THE MAXIMUM EXTENT PERMITTED BY LAW; CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ARBITRATIONS ARE NOT PERMITTED.  COMPANY WILL PAY ALL ADMINISTRATIVE COSTS OF THE ARBITRATOR, NO MATTER WHO WINS, SO LONG AS YOUR CLAIM IS NOT FRIVOLOUS OR BROUGHT IN BAD FAITH. HOWEVER, IN ARBITRATION, BOTH YOU AND COMPANY WILL BE ENTITLED TO RECOVER ATTORNEYS´ FEES FROM THE OTHER PARTY TO THE SAME EXTENT AS YOU WOULD BE IN COURT. 

A.         Arbitration Agreement.  We and you agree to arbitrate any and all disputes and claims between us arising out of or relating to the Service or the Terms, or use of the Service, whether you are a Participant or not, via the Service (including any mobile application), except any disputes or claims which under governing law are not subject to arbitration, to the maximum extent permitted by applicable law.  This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us subject to arbitration to the fullest extent permitted by law. However, any dispute you or we may have relating to copyrights or other intellectual property shall not be governed by this agreement to arbitrate. For the avoidance of doubt, this means that any claims you or we may have relating to intellectual property rights against the other, including injunctive and other relief sought, may be brought in a court of competent jurisdiction.  The agreement to arbitrate otherwise includes, but is not limited to: claims based in contract, tort, warranty, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior Terms (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; claims relating to the survey for which you seek support via the Service; claims arising out of or relating to the Telephone Consumer Protection Act; claims relating to your data privacy or information security; and claims that may arise after the termination of the Terms.  For purposes of this arbitration provision, references to “Company,” “you,” and “us” shall include our respective parent entities, subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, websites of the foregoing, as well as the OEM and all authorized or unauthorized users or beneficiaries of services, products or information provided or made available under this or prior agreements between us relating to or arising from any aspect of your use or access of the Service. Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into these Terms, you and Company are each waiving the right to a trial by jury or to participate in a class or representative action to the maximum extent permitted by law. These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. This arbitration provision shall survive termination of these Terms or your relationship with Company for any reason.

B.         Written Notice of Dispute.  A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Company should be addressed to: Clarity Research, Attn: Legal Department - Arbitration, 1464 E. Whitestone Blvd. Ste. 1802J, Cedar Park, TX 78613 (the “Notice Address”).  The Notice must describe the nature and basis of the claim or dispute and set forth the specific relief you seek from Company (the “Demand”').  If Company and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Company is entitled. In arbitration, and to the extent otherwise permitted by law, the parties may exchange “offers of compromise” or stipulate to judgments or awards in the same way the parties could in court, including for example, under California Code of Civil Procedure Section 998 for arbitrations taking place in California. Such offers of compromise shall have the same force and effect as they would in a court proceeding. The arbitration proceedings shall otherwise remain confidential, except for purposes of seeking court intervention (if necessary).  You may obtain more information about arbitration from www.adr.org.

 

C.         Filing Fees.  After Company receives Notice at the Notice Address that you have commenced arbitration, Company will promptly reimburse you for your payment of the filing fee.  The filing fee currently is $200, but is subject to change by the arbitration provider.  The arbitration will be governed by the Consumer Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address.  The AAA Rules may change from time to time, and you should review them periodically.  All issues are for the arbitrator to decide, including the scope and enforceability of this arbitration provision as well as these Terms other terms and conditions, and the arbitrator shall have exclusive authority to resolve any such dispute relating to the scope and enforceability of this arbitration provision or any other term of these Terms, including, but not limited to, any claim that all or any part of this arbitration provision or the Terms are void or voidable. However if putative class or representative claims are initially brought by either party in a court of law, and a motion to compel arbitration is brought by any party in court, then the court shall decide whether these Terms permit class proceedings.  For the avoidance of doubt, the court and arbitrator shall be bound by the terms of these Terms, including with regard to the class and representative waiver provision. In any arbitration, the arbitrator shall be bound by the terms of these Terms and shall follow the applicable law. The arbitrator shall not have the power to commit manifest errors of law or legal reasoning, and any award rendered by the arbitrator that employs a manifest error of law or legal reasoning may be vacated or corrected by a court of competent jurisdiction for any such error.  Unless Company and you agree otherwise, any arbitration will be governed by the substantive laws of your state, and hearings will take place in the county (or parish) of your billing or registered address. Case management and other hearings shall be heard via telephone unless otherwise agreed to.  Except as otherwise provided for herein, Company will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above.  If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules.  In such case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.

D.         Discovery.  Discovery and/or the exchange of non-privileged information relevant to the dispute will be governed by the AAA Rules.

 

E.         No Class Action Matters.  YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING TO THE MAXIMUM EXTENT PERMITTED BY LAW.  Further, unless both you and Company agree otherwise in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.  If this specific subparagraph (e) is found to be unenforceable in its entirety, then the entirety of this arbitration provision shall be null and void. However, if only a portion of this subparagraph (e) is found to be unenforceable, then the unenforceable portion of the provision shall be stricken, and the remainder of subparagraph (e) enforced.  Any claims or causes of action seeking relief not subject to individual arbitration under applicable law shall be stayed in a court of competent jurisdiction pending completion of individual arbitration to the maximum extent permitted by law.

 

F.         Jurisdictional Issues.  Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any dispute arising hereunder may only be instituted in state or Federal court in Orange County, California.  Accordingly, you and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.

12. Choice of Law:  These Terms will be governed by, construed, and enforced in accordance with the laws of the State of California, without regard to its conflicts of law principles.  The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.  Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this Section. 

 

13. Updates to Terms:  These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use).  AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED.  ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS.  Therefore, you should review the posted terms of use and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission).  The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you.  However, the Terms (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed.  In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs.  You should frequently check the home page and the email you associated with your account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice.  You can reject any new, revised or Additional Terms by discontinuing use of the Service and related services.

 

14. General:  The Service is operated in the United States.  Company makes no representation that the Service is appropriate or available for use beyond the U.S.  If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.  We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any Content, program, product, service, or other feature that we provide.  If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches Company’s intent as expressed in the original provision and the remainder of these Terms will continue in full force and effect.  A printed version of these Terms and any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.  Company may assign these Terms, in whole or in part, at any time with or without notice to you.  You may not assign these Terms (in whole or in part), by operation of law or otherwise, without the prior written approval of Company in each instance, and any such attempted assignment will be null and void.  Subject to the foregoing, these Terms will be binding upon and inure to the benefit of the parties hereto, their successors, and permitted assigns.  The failure of Company to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.  Notwithstanding anything set forth herein to the contrary, OEM is hereby made a third-party beneficiary to these Terms, entitled to enforce the provisions of these Terms directly against you.  These Terms shall inure to the benefit of Company, and its successors and assigns.  These Terms (including whatever documents the Company has specifically referenced herein as applicable) sets forth the entire understanding and agreement between Company and you with respect to the Service, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Company with respect to the Service.  The Section titles in these Terms are solely used for the convenience of the parties and have no legal or contractual significance.  You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.  Each party is an independent contractor and not an agent or representative of any other party.  Neither party will have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of the other party. These Terms will not be interpreted or construed to create an association, joint venture or partnership between the parties, or to impose any partnership obligation or liability upon any party.  The parties acknowledge and agree that these Terms may be entered into electronically, and without the necessity of written signatures.  The provisions of these Terms and any Additional Terms (including the terms applicable to Participant Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to OEM and Company in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

Please contact us at info@clarityresearch.com with any questions regarding these Terms.