Toluna QuickSurveys Terms and Conditions
TERMS AND CONDITIONS
Latest version 15 March 2020
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) VERY CAREFULLY BEFORE REGISTERING TO USE TOLUNA QUICKSURVEYS AS A CUSTOMER. YOUR REGISTRATION INDICATES THAT YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, PLEASE DO NOT REGISTER TO USE TOLUNA QUICKSURVEYS.
We may amend these Terms from time to time as set out in Section 12(d). Every time you wish to use our Services online, please check these Terms to ensure you understand the terms which will apply at that time.
These Terms constitute the entire agreement between you ("you" or "Client") and Toluna SAS, at 5 Avenue du Château, Vincennes, 94300 France on behalf of itself and any its Affiliates (found listed here https://www.toluna-group.com/en-gb/search-results/contact-us-main), with whom you have contracted ("Toluna" or “we/our/us”) for the use of Toluna's quick research and polling service named Toluna QuickSurveys (the "Service") accessible on its website https://www.quicksurveys.com/ or any of its local sub-websites (collectively, the "Website"). The Service is provided to you in accordance with these Terms and any other applicable rules and policies set forth on the Website.
The Service allows you to create individualized Toluna QuickSurveys and obtain results to your Toluna QuickSurveys account from registered members of the Toluna Influencer panel (the "Panellists") in the selected country. You are solely responsible for all of the content of the Toluna QuickSurveys you create and post on the Website, including, but not limited to the creation, renewal, updating, deletion, editorial content, control and all other aspects of any files, software, scripts, images, graphics, audio, video, text, data, music, sound, photographs, or other objects, survey responses to questions, information, messages or other materials communicated, submitted or transmitted by you or respondents of your surveys through the Service (collectively, the "Client Content"). You acknowledge and agree that Toluna does not warrant participation in Toluna QuickSurveys or participation rates and that participation rates may vary drastically depending on the length of interview, incidence rate, content, placement and audience. Toluna shall bear no liability in the event that the participation is lower than requested. Once your Toluna QuickSurveys has been posted on the Website, you will not be able to make any further modification (surveys definition, filters, images etc...) nor cancel it. The results of your Toluna QuickSurveys will be accessible directly on the Website. Results to Toluna QuickSurveys are stored on the Website and will remain accessible until you remove your account for up to two years after your account is closed. In the event you delete your account, all account data will be removed from Toluna QuickSurveys backup files within a reasonable time thereafter. Notwithstanding the foregoing, Toluna reserves the right to reject or remove any part of the Services and your access to them at any time, where it has reasonable ground to believe that the content of a Toluna QuickSurveys does not comply with these Terms or any applicable legislation or regulation, or after a period of two years after your Toluna QuickSurveys has been posted on the Website. A "respondent" means an individual who responds to a Toluna QuickSurveys questionnaire or survey and may be a member of the Toluna Influencer panel or acquired through one of Toluna's partners or be an individual who is part of a Client sample whose data is uploaded to Toluna QuickSurveys by Client.
Client Registration and Account
Prohibited Uses and QuickCommunities or PopUp Communities
Although Toluna is not responsible for any such content or communications, Toluna reserves the right to take any action it deems necessary or appropriate in its sole discretion, with respect to any such content or communications of which Toluna may become aware, at any time and without notice to you. You further acknowledge and agree as follows:
a. We do not control the Client Content and makes no representation or warranty regarding its accuracy, integrity or quality.
b. You may not modify, edit, copy, reproduce, create derivative works of, enhance, reverse engineer, decompile, alter, duplicate or otherwise attempt to decipher any code in connection with the Service or any other aspect of our technology.
c. You shall not upload, post, email, distribute, communicate, transmit, or otherwise make available any viruses or similar malicious software that may damage the operation of a computer or the Service.
d. You shall not use the Toluna QuickSurveys to send surveys, polls, or other materials to individuals under the age of majority in his or her place of residence ("Minors"), or to harm Minors in any way, and shall not send surveys, polls, or other materials to Minors that would subject Toluna to any local or international law, rule or regulation (including industry regulations) governing children's privacy or otherwise related to protecting Minors. This includes, in particular, any research on sensitive issues such as sexuality, drug use, etc.
e. You may not assign, transfer resell, distribute or otherwise use the Service except as agreed herein. You shall not use or present the survey results in a misleading or illegal manner, or in any manner which would adversely impact upon the reputation or goodwill of Toluna, and Toluna reserves the right to publish a correction in the event of such use or presentation. Survey results cannot be used in connection with any dispute resolution, litigation, arbitration or other legal proceeding of any nature ("Litigation Purposes"). You must ensure that whenever the research findings are communicated to clients, customers, employees, survey respondents or otherwise published, Toluna is credited for all research as "research conducted using Toluna QuickSurveys, powered by Toluna".
f. You may not assign, transfer resell, distribute or otherwise use the Service except as agreed herein.
g. You shall not access and/or use Toluna QuickSurveys in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Service or any networks or security systems of Toluna.
h. You acknowledge and agree that any violation of any of the foregoing will constitute a material breach of your contract with us pursuant to these Terms (“Contract”). In such event, Toluna may, in addition to any and all applicable legal and equitable remedies against you, (i) disable your account and your access to the Website and the Service hereunder; and (ii) recover from you any losses damages, costs or expenses incurred by Toluna resulting from or arising out of your non-compliance. You further acknowledge and agree that Toluna may cooperate with any governmental authority in connection with any investigation into your use of Toluna QuickSurveys, including use in contravention of applicable laws, and may, in accordance with applicable laws, disclose any Client Content, and any other information pertaining to you or to your use of Toluna QuickSurveys, to such governmental authority in connection with any such investigation.
QuickCommunities or PopUp Communities
Notwithstanding the provisions of section (4) above, if we have agreed in writing that you may request the downloading of respondent’s images, audio recording, first name and/or user name as part of our Quick Communities or PopUp Communities, then you may request such personal data, provided that you have first obtained the specific informed consent of the respondent, including prominently displaying to such respondents your privacy notices, which are clear and provide sufficient information so that such respondents understand how their personal data will be treated. You may not share such personal data with any other entity for any reason whatsoever, unless required by law.
c. You acknowledge and consent to the transfer of the personal data referred to in section 5b. above to Toluna USA, Inc., for hosting and backup purposes. Toluna USA recognises that the EU has established strict protections regarding the handling of EU personal data, including requirements to provide adequate protection for EU personal data transferred outside of the EU. To provide adequate protection for certain EU personal data about individuals (including about our corporate clients, suppliers, business partners, job applicants and employees received in the USA). Toluna USA has elected to self-certify to the EU-US Privacy Shield Framework administered by the US Department of Commerce ("Privacy Shield"). Toluna USA is responsible for the processing of personal information it receives, under the Privacy Shield and subsequently transfers to a third party acting as an agent on its behalf. Toluna USA adheres to the Privacy Shield Principles of Notice, Choice, Accountability for Onward Transfer, Security, personal data Integrity and Purpose Limitation, Access, and Recourse, Enforcement, and Liability. Toluna may also transfer such personal data to any of its worldwide offices as listed in the following link: http://www.toluna-group.com/search-results/contact-us-main. Toluna has put in place adequate safeguards to protect the rights of the data subjects, including entering into EU Model Contract Clauses with those Toluna entities who are located in territories that do not have adequate protection to protect the rights of data subjects about whom it processes personal data.
d. The following terms shall have the meanings ascribed to them below:
"CCPA" shall mean the California Consumer Privacy Act of 2019, Assembly Bill No. AB-375 the California House of Representatives, to Part 4 of Division 3 of the Civil Code;
“GDPR” shall mean the General Data Protection Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and any other directly applicable EU legislation relating to privacy and/or data protection;
“UK Data Protection Legislation” shall mean any successor legislation to the GDPR in the United Kingdom relating to privacy and/or data protection, upon the United Kingdom leaving the EU, including, but not limited to the UK Data Protection Bill;
“Data Protection Legislation” shall mean any legislation relating to privacy and/or data protection as applicable to the processing of personal data under this Agreement, including, but not limited to, the GDPR, UK Data Protection Legislation; and
the terms “personal data”, “special categories of personal data”, “data controller”, “process”, “data processor”, “data subject”, “personal data breach”, “joint data controllers” and “supervisory authorities” shall have the meaning ascribed to them in the GDPR.
Intellectual Property Rights
As between you and Toluna, you shall own all right, title and interest in and to any Client Content. During the term of your Subscription, you grant to Toluna a limited, non-exclusive, royalty-free license to host the Client Content for all reasonable and necessary purposes contemplated by these Terms. These Terms do not transfer to Toluna or any third party any right, title or interest in or to the Client Content. Instead, Toluna shall have a limited right use the Client Content as is necessary to perform the Services and in accordance with these Terms. Any questionnaires submitted by you as part of the Services may be re-used by us within any of the Toluna suite of services (whether online or offline) if you click the relevant box when you log in to use the Services, indicating you agreed to share such Client Content and in such instances, you grant us the right to use such questionnaires for such purposes. Toluna, its affiliates and/or their licensors shall remain the sole and exclusive owners of all intellectual property rights, including without limitation all patents, trademarks, service marks, copyright, database, software, and know how in and to the Website, the Service and any content therein (the "Materials"). You will not acquire any right, title, or interest in or to the Materials except as expressly set forth in these Terms. Toluna grants you a personal, non-exclusive, non-transferable and revocable right to use the Materials for the sole purpose of using the Service in accordance with the terms of these Terms. The Materials may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purpose whatsoever without the prior written consent of Toluna or its licensors.
Toluna and any of its Affiliates may use the Client Content and information derived from Customer's use of the Toluna QuickSurveys for the purposes of (i) security and data integrity, (ii) conducting analysis on industry trends and developments and/or; (iii) improving Toluna QuickSurveys, including, but not limited to product features, performance and functionality and development of Toluna products and services.
Toluna will anonymise and aggregate such information and not retain any personal data within the Client Content.
Term and Termination
These Terms shall automatically become effective upon your first use of Toluna QuickSurveys and shall continue until it is terminated in accordance with these Terms. If you do not have a Subscription, you may terminate this Contract by emailing Toluna at email@example.com, and the Contract will terminate immediately after Toluna has received said notice. If you do have a Subscription, you may cancel the Subscription and terminate the Contract by written notice in the event Toluna materially breaches any of its obligations hereunder, and said breach is not cured within 60 days of Toluna's receipt of your notice of such breach. Toluna may terminate this Contract and cancel any Subscription hereunder immediately by notice to you in the event that you breach any of your representations, warranties, covenants or obligations under these Terms or contravene any applicable law. Upon any termination the Contract, your rights to use the Service shall cease immediately, your account will be deactivated and Toluna shall have no obligation to retain, forward or make available to you any Toluna QuickSurveys responses or results. Upon a termination, all rights and duties of the parties toward each other shall cease except those intended to survive such termination (including, but not limited to, Sections 7, 8, 9, 10, 11 and 12). Upon termination, all account information and data will be deleted from Toluna QuickSurveys backup files within one (1) business day.
You shall, at your sole expense, indemnify, defend and hold Toluna, its affiliates and their respective officers, directors, employees and agents harmless from and against any loss, cost, damages, liability or expense arising out of or relating to: (i) your use of the Service, including its reliance on any information or materials (including survey results or responses) obtained through the use of the Service; and/or (ii) your breach of these Terms.
Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY LAW, TOLUNA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, SUITABILITY, AVAILABILITY, TIMELINESS, QUALITY, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU AGREE AND ACKNOWLEDGE THAT THE WEBSITE AND THE SERVICE ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," AND "WITH ALL FAULTS". OTHER THAN AS SPECIFICALLY SET FORTH HEREIN TOLUNA MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES TOLUNA MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED (INCLUDING PLUG-INS) THROUGH THE USE OF THE SERVICE IS DONE AT THE SOLE RISK OF CUSTOMER AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM TOLUNA OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TOLUNA BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER DAMAGES RELATED TO THIS CONTRACT, THE WEBSITE OR THE SERVICE (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOST PROFITS, COSTS OF RECOVERY OR ANY OTHER DAMAGES), HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, AND WHETHER OR NOT TOLUNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TOLUNA'S LIABILITY HEREUNDER IS LIMITED TO $1,000 OR THE AMOUNT OF FEES PAID TO TOLUNA BY CUSTOMER HEREUNDER, WHICHEVER IS LESS. NO ACTION ARISING OUT OF THIS AGREEMENT (OTHER THAN AN ACTION BY TOLUNA FOR THE RECOVERY OF FEES OWED) MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION FIRST AROSE.
Toluna agrees not to publicly disclose your identity, your personal data or your use of the Service without your prior consent (electronic email or ticking of a box accepted), except to its affiliates and technical partners for the sole needs of furnishing the Service. Toluna shall, however, be permitted to display your corporate logo in its marketing materials.
Applicable Law and Jurisdiction, Additional Terms
This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the laws of England and Wales. You irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
a. Authority - Each party hereby represents and warrants to the other party that it has all necessary authority to enter into and perform its obligations under this Contract without the consent of any third party or breach of any contract or agreement with any third party.
b. Assignment – You may not assign your rights or delegate your duties under this Contract either in whole or in part, and any such attempted assignment or delegation shall be void
c. Force Majeure – Neither party shall be deemed in default of these Terms to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted or prevented by reason of any act of God, fire, natural disaster, act of government, strikes or labour disputes, inability to provide raw materials, power or supplies or any other similar act or condition beyond the reasonable control of such party.
d. Amendment – We may amend these Terms from time to time for any reason, including to reflect changes in laws, regulatory requirements and other rules and codes of conduct to which we are accustomed. Please look at the top of this page to see when these Terms were last updated and which terms were changed. Every time you use the Service, these Terms in force at the time of your order will apply to the Contract between you and us.
e. Severability – If any provision of this Contract is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from these Terms and the others shall remain in full force and effect.
f. Contracts (Rights of Third Parties) Act 1999 – A person who is not a Party to this Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
g. Neutral Construction – The parties agree that these Terms shall be deemed to have been jointly and equally drafted by them, and that the provisions of these Terms therefore should not be construed against a party or parties on the grounds that the party or parties drafted or was more responsible for drafting a provision(s).
h. Entire Agreement – Each party to this Contract acknowledges that these Terms constitutes the entire agreement of the parties with regard to the subject matter addressed in these Terms, that these Terms supersede all prior or contemporaneous agreements, discussions, or representations, whether oral or written, with respect to the subject matter of the Contract, and that these Terms cannot be amended except by a writing signed by all parties hereto. Each party to this Contract further acknowledges that no promises, representations, inducements, agreements, or warranties, other than those set forth herein, have been made to induce the execution of this Contract by said party, and each party acknowledges that it has not executed this Contract in reliance on any promise, representation, inducement or warranty not contained herein.
i. Captions and Headings – Captions and headings are used herein for convenience only, are not a part of this Contract, and shall not be used in interpreting or construing this Contract.