End User License Agreement
This End User License Agreement (the “EULA”) is a binding agreement between you (“you”, “your”) and the creator (“Creator”) of the survey or questionnaire from which this EULA is linked (the “Survey”) and govern your relationship with the Creator, the information (including video and text, and any personally identifiable information or personal data) provided in response to the Survey (“Submissions”), and the use of the websites, related communication services, survey and video products, and applications which are provided by CSC Partners, LLC and its affiliates to Creators that are branded as “TalkBackTime” (collectively, the “Services”). Certain Services or your use thereof may be subject to additional terms, policies, notices, rules, and guidelines, including without limitation the Acceptable Use Policy (collectively, “Additional Terms”, collectively with this EULA, the “Agreement”). In the event there is a conflict or inconsistency between this EULA and the Additional Terms, the Additional Terms shall govern as to the extent of such conflict or inconsistency.
By clicking on a button indicating your acceptance of this EULA or this Agreement, responding to a Survey, providing Submissions, or using the Services, you agree to this Agreement.
You represent and warrant that you have the right and power to enter into this Agreement with the Creator. If you use the Services, a Survey, or provide Submissions for or on behalf of an organization, you represent, warrant, and covenant that you have the authority to bind the organization to this Agreement, and in such case, “you” and “your” in this Agreement will refer to that organization. If you are not an individual, you represent, warrant, and covenant that you are validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into this Agreement, and that your agent(s) are duly authorized to bind you to this Agreement.
PLEASE NOTE THAT THIS EULA CONTAINS A BINDING INDIVDUAL ARBITRATION, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER IN SECTION 9(c) BELOW THAT AFFECTS YOUR RIGHTS WITH RESPECT TO DISPUTES. PLEASE BE SURE YOU UNDERSTAND THOSE CONDITIONS BEFORE YOU USE THE SERVICES.
- License. Subject to the terms of this Agreement, the Creator grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable worldwide license to access and use the Services and access, use, and provide Submissions in response to, each Survey solely in accordance with this Agreement. Except as explicitly provided in this Section, you obtain no rights under this Agreement from the Creator, the Creator’s affiliates, or the Creator’s licensors to the Services nor Survey, including any related intellectual property rights.
3. Restrictions on Use.
You represent and warrant that you will comply with all applicable laws, rules, regulations, and guidance (“Laws”). When using the Services and providing the Submissions, you agree that you shall not, and shall not permit any third party to:
- Except, and solely to the extent expressly permitted under this Agreement, copy, reproduce, modify, use, republish, upload, post, transmit, sell, resell, license, rent, lease, lend, otherwise distribute or commercially exploit in any way, decompile, reverse engineer, disassemble, otherwise attempt to derive source code from, or modify or create copies of or derivative works based on, the Services;
- Purchase, use, or access the Services for a purpose competitive with TalkBackTime, including without limitation building a competitive service;
- Use the Services to collect, access, use, or process Restricted Information (as defined below) without obtaining prior written authorization from the Creator;
- “Frame” or use the Services, any Surveys, or any Submissions in any way that might confuse, misdirect, or misrepresent their source, or sponsorship or affiliation thereof or therewith;
- Use any robot, spider or other automatic device, manual process or application or data mining or extraction tool to access, monitor, copy or use the Services or any Materials, register accounts, or create or provide Materials;
- Bypass, circumvent, or attempt to bypass or circumvent, any security measures, access methods, or account restrictions;
- Take any action that interferes with the normal operation of the Services;
- Take any action that imposes an unreasonable or disproportionately large load on the Services or on the Creator or the Creator’s service providers, including without limitation TalkBackTime;
- Unless expressly authorized by TalkBackTime in writing, probe, scan, or test the vulnerabilities of the Services, systems, or networks operated by TalkBackTime;
- Take any action in connection with your use of Services or Materials that violates any Law or order of any court in conjunction with your use thereof;
- Violate or fail to comply with the Acceptable Use Policy; or
- Otherwise use the Services for any unlawful or abusive purposes, including, but not limited to, the violation of any intellectual property or privacy rights (whether belonging to the Creator, TalkBackTime, or third parties) and the posting or distribution of any “harmful” or “malicious” code or programming devices (e.g., viruses, malware, ransomware, corrupted files, key locks, back doors, trap doors, timers or other disabling devices) or any other similar software or programs that may adversely affect the operation of the Services or any other software, hardware, network or other technology, or any links thereto (collectively, “Malicious Code”).
4. Surveys and Submissions.
- Submissions. The Services provide a platform for Creators to make Surveys available to you, and to request and obtain Submissions from you. TalkBackTime has no responsibility or liability for the processing of Surveys or Submissions through the Services, nor for the content of such Surveys or Submissions.
- License to Surveys and Submissions. By providing Submissions through the Services, you grant Creator a worldwide, non-exclusive, royalty-free, and irrevocable license to use, process, reproduce, perform, display, publish, adapt, modify, create derivative works from, sell, license, sublicense (through multiple levels), broadcast, transmit, distribute, exhibit, disseminate or otherwise exploit through or by means of any media, formats or other means now known or developed in the future such Submissions. By providing Submissions through the Services, you grant TalkBackTime a worldwide, non-exclusive, royalty-free, irrevocable, and sublicenseable (through multiple levels) license to use and process the Submissions for the purpose of providing, developing, troubleshooting, and analyzing the use of, the Services.
- Processing of Submissions. You are responsible for any and all Submissions you process or cause to be processed through the Services, and any such processing of Submissions is at your own risk. You represent, warrant, and covenant that: (i) the Submissions, and your provision thereof, comply with this Agreement, including the Acceptable Use Policy; (ii) you have all rights in and to the Submissions necessary to grant the rights and licenses contemplated by this Agreement; (iii) neither the Submissions nor the use thereof in compliance with this Agreement will violate this Agreement (including the Acceptable Use Policy), Law, or the rights of any party; (iv) the Submissions do not contain, constitute, or link to Malicious Code; and (v) you have obtained a valid release from all individual persons whose likenesses appear, and whose voices are heard, in the Submissions.
- Restricted Information. If your use of the Services or Submissions requires you to comply with industry-specific legal obligations and/or regulations applicable to such use, you will be solely responsible for such compliance, and you may not use the Services or provide Submissions in a way that would subject the Creator or TalkBackTime to those industry-specific regulations. For example, you may not use the Services to process or Submit “protected health information,” as defined by the Health Information Portability and Accountability Act of 1996 (HIPAA) and its regulations. Similarly, you may not use the Services to collect, access, or process “nonpublic personal information” as defined by the Financial Services Modernization Act of 1999 and it’s implementing regulations, “cardholder data” or “sensitive authentication data” as defined by the Payment Card Industry Data Security Standard, or information protected by similar laws or obligations (collectively with protected health information, “Restricted Information”). In the event you use the Services to Submit Restricted Information in violation of this provision, contact the Creator immediately as described at the end of this EULA.
- Retention of Materials. The Creator has control over whether and in what way it uses and retains Submissions obtained through the Services. Certain subscription models for the use of the Services may limit the size, amount, duration, or other characteristics of Surveys or Submissions processed, and/or the types and amounts of Submissions the Creator may collect or the period for which they are stored. To the extent permitted by Law, neither the Creator nor TalkBackTime will be liable for any failure to store, or for loss or corruption of, Submissions.
- Review and Removal of Materials. You acknowledge and agree that the Creator and/or TalkBackTime may, but have no obligation to, review certain Submissions or Surveys made available through the Services, including in response to reports of unlawful or infringing Submissions or Surveys, or to evaluate compliance with this Agreement and/or the Acceptable Use Policy. The Creator may, or may be required to, remove, limit access to, modify, or refuse to display Submissions or Surveys that the Creator or TalkBackTime believe violate this Agreement and/or Law. If the Creator or TalkBackTime takes any of the foregoing actions with respect to any Submissions, do not re-submit such Submissions.
5. Term, Termination, and Suspension.
- Your license to use the Services may be terminated for any of the following reasons:
- You fail to comply with any terms or conditions of this Agreement;
- You use the Services in a way, or provide Submissions that, the Creator or TalkBackTime reasonably believe causes potential or actual: (1) disruption to the Services or others’ use of the Services; and/or (2) legal liability, harm, or security risk to the Creator, TalkBackTime, systems, service providers, licensors, and/or third parties; or
- The Creator and/or TalkBackTime reasonably suspects and/or is investigating suspected misconduct by you.
Please note that, in the event of repeated or material breach of this Agreement, additional measures may be taken to prevent the breaching party’s further use of the Services, such as blocking of IP addresses.
- Survival. Sections 2 through 13 of this EULA, as well as any provisions of this Agreement that by their nature would survive, shall survive any expiration or termination thereof.
- Your license to use the Services may be terminated for any of the following reasons:
6. Proprietary Rights.
- Creator Intellectual Property. As between you and Creator, Creator or its licensors (including, without limitation, TalkBackTime) own all right, title, and interest in and to the Services, Surveys, and all related technology and intellectual property rights. Except as expressly set forth in this Agreement, nothing in this Agreement shall be deemed to grant to you or any other individual or entity any license or right in or to any copyright, trademark, trade secret, or other proprietary right, whether owned by Creator, Creator’s licensors, or any other person. You are prohibited from removing or altering intellectual property notices on the Services or Surveys without the Creator’s express written authorization in each instance.
- Your Intellectual Property. As between you and Creator, you represent, warrant, and covenant that you or your licensors own all right, title, and interest in and to the Submissions you make available through the Services.
7. Disclaimers and Limitations of Liability.
- TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND SURVEYS ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: (i) IMPLIED WARRANTIES OF MERCHANTIBILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR QUIET ENJOYMENT; (ii) ANY WARRANTY REGARDING THE ACCURACY, RELIABILITY, OPERATION, USE, OR PERFORMANCE OF THE SERVICES OR SURVEYS; (iii) ANY WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES, SURVEYS, AND/OR THE SERVER(S) AND CONNECTIONS THAT MAKE THEM AVAILABLE WILL BE UNINTERUPTED, SECURE, OR FREE OF ERRORS OR MALICIOUS CODE; (iv) THAT ANY OR ALL SUBMISSIONS WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED; AND (iv) ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
- NEITHER THE CREATOR NOR TALKBACKTIME REPRESENTS NOR WARRANTS THAT THE SURVEYS, CONTENT, AND INFORMATION ACCESSIBLE ON OR VIA THE SERVICES ARE ACCURATE, CORRECT, COMPLETE, RELIABLE, OR CURRENT, AND NEITHER THE CREATOR NOR TALKBACKTIME ARE RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN, OR ANY CONSEQUENCES RESULTING FROM YOUR RELIANCE ON SUCH CONTENT OR INFORMATION.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CREATOR, TALKBACKTIME, THEIR AFFILIATES, AND EACH OF THEIR OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (i) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR (ii) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS, OR ANY DAMAGES (IN EACH CASE WHETHER DIRECT OR INDIRECT) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, SURVEYS, AND THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY(IES) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EACH OF CREATOR, TALKBACKTIME, THEIR AFFILIATES, AND EACH OF THEIR OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, SURVEYS, AND THIS AGREEMENT WILL NOT EXCEED US$100.00 (ONE HUNDRED DOLLARS); PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION ON LIABILITY SHALL NOT APPLY WITH RESPECT TO ANY LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
- The laws of certain jurisdictions provide certain legal rights to consumers that may not be waived by those consumers. If you are such a consumer, nothing in this Agreement limits any such consumer rights.
- To the maximum extent permitted by applicable law, you agree to indemnify, defend, and hold the Creator, TalkBackTime, its and their licensors, and each of the foregoing’s affiliates, members, officers, directors, managers, partners, employees, consultants, temporary resources, agents, suppliers, providers, contractors, subcontractors, licensors, successors, transferees, and assignees (collectively, “Indemnified Parties”) harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees, disbursements and court costs, including any incurred in enforcement of this indemnification provision) (collectively, “Damages”) arising from or in connection with: (i) use of the Services or Surveys by you; (ii) Submissions made available by you or on your behalf; (iii) breach or violation of this Agreement; (iv) violation of any rights of any third party by you; and/or (v) with respect to TalkBackTime Indemnified Parties, any dispute between you and the Creator or any third party.
9. Governing Law and Dispute Resolution.
- Governing Law; Venue. This Agreement is governed and interpreted pursuant to the laws of the State of Delaware, United States of America, notwithstanding any principles of conflicts of law. The Creator makes no representation that the Services or Surveys are applicable or appropriate for use in all locations. If you use the Services or Surveys from other locations, you are responsible for compliance with applicable local laws. If you take legal action relating to this Agreement or your interactions with or relationship to the Creator, the Services, or TalkBackTime that is not subject to arbitration as provided below, you agree to file such action only in the state and federal courts located in New Castle County, Delaware and waive any objection you may have to the venue or forum.
- Injunctive or Equitable Relief. You acknowledge and agree that your actual or threatened breach of this Agreement would give rise to irreparable harm to Creator and/or TalkBackTime for which monetary damages would not constitute an adequate remedy and, in addition to any and all other rights that may be available in respect of such breach or threatened breach, will entitle the Creator and/or TalkBackTime to immediate injunctive and other equitable relief without any requirement to post bond.
- Arbitration of Disputes; Class Action Waiver; Jury Trial Waiver. Any controversy or claim between Creator and you arising out of or relating to this Agreement, or breach thereof, including disputes with respect to arbitrability, authority of the arbitrator, and whether the subject matter of any controversy or claim is within the scope of this arbitration provision, will be governed by and construed in accordance with the laws of the State of Delaware, excluding its choice of law rules and will be settled by binding arbitration in New Castle County, Delaware under the Commercial Arbitration Rules (for business respondents, or the Consumer Arbitration Rules for individual respondents) of the American Arbitration Association (“AAA”) and administered by the AAA. The parties explicitly disclaim any applicability of the U.N. Convention on Contracts for the International Sale of Goods to this Agreement. All arbitration proceedings will be conducted in English. Such arbitration will have one (1) neutral arbitrator if the amount in controversy is less than one million dollars ($1,000,000) or otherwise before a panel of three (3) neutral arbitrators. Each of the arbitrators must be: (i) a lawyer licensed to practice law in the United States with a minimum of fifteen (15) years of legal practice or senior level business experience or a retired judge with a minimum of five (5) years of service on the bench; (ii) an individual with at least five (5) years of experience as an arbitrator; and (iii) on the roster of neutrals of the AAA or similar nationally recognized ADR organization. If the arbitration proceedings shall be conducted before a panel of three neutral arbitrators, the panel shall be selected using the following process: Within fifteen (15) days after the commencement of arbitration, each party shall each select one person meeting the specified qualifications to act as neutral arbitrator, and the two thus selected shall select a third neutral arbitrator meeting the specified qualifications within fifteen (15) days of their appointment. The third neutral arbitrator shall act as the chair of the arbitration panel. If the arbitrators selected by the parties are unable to or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA. Notwithstanding this arbitration provision, the Creator and/or TalkBackTime may seek emergency, temporary, or preliminary injunctive relief from a competent court of law or equity pending the final ruling of the arbitrator(s), without any requirement to post bond, to prevent irreparable harm arising from any unlawful acts by you. NEITHER YOU NOR CREATOR NOR TALKBACKTIME WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT. ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN AN ARBITRATION, EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, CLAIM OR PROCEEDING ARISING HEREUNDER, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT.
TalkBackTime expressly reserves the right to monitor any and all use of the Services, Surveys, and Submissions, but have absolutely no obligation to do so, nor to continue to do so at any point. TalkBackTime also reserves the right to investigate and take legal action against any illegal and/or unauthorized use of the Services, Surveys, and/or Submissions and/or in response to any complaints or reports of abuse.
- Changes to the Services. The Services may add, modify, or remove functionality at any time with or without notice, and may be limited, suspended, or discontinued in whole or in part.
- Minors. None of the Services are intended for use by minors (individuals under the age of 16, or higher as provided by Law). If you are a minor in your place of residence, you may not use the Services. If you provide Submissions that contain the personal data, the likeness, and/or the voice of a minor using the Services, in addition to the release required by Section 4(c)(v) with respect to such minor, you represent and warrant that you have appropriate parental and/or guardian consent to make such Submissions available through the Services and to grant the licenses to Submissions hereunder.
- Third-Party Websites. The Services may provide links or references to third-party websites, mobile applications, services, or materials not provided or maintained by TalkBackTime. TalkBackTime has no responsibility for the content thereof, regardless of whether the link is provided by TalkBackTime, the Creator, you, or a third party, and neither Creator nor TalkBackTime will be responsible or liable for any damages or injury arising from your access to or use of that content. You should review any terms and conditions, privacy notices, and other terms associated with such third-party websites, applications, services, or materials before use. The display of any link shall not and does not constitute or imply endorsement by TalkBackTime or its licensors of the linked website or any content therein. No judgment or warranty is made with respect to the accuracy, timeliness, or suitability of the content of any website to which the Services may link, including information on such other website regarding us.
- International Use. If you use or access the Services from locations outside of the territorial jurisdiction of the United States, you do so at your own risk, and you are responsible for compliance with any and all Laws. You will not use or access the Services from jurisdictions where any content or features that are available on or through the Services are illegal. You will not access or use the Services if (i) you are presently located in a country that is subject to U.S. Government sanctions or embargos, or that has been designated by the U.S. Government as a “terrorist supporting” country, and/or (ii) if you or a related party is or later becomes subject to any U.S. Government or foreign country’s list of prohibited, restricted, or sanctioned parties.
- Language. All communications and notices made or given pursuant to this Agreement shall be in the English language. If a translation of the English language version of this Agreement is provided, the English language version of this Agreement will control if there is any conflict.
- Excusable Delay. Neither Creator nor TalkBackTime will be liable to you for failure or delay in the performance of any terms and conditions hereof, when such failure or delay is due to causes beyond Creator’s or TalkBackTime’s reasonable control and without Creator’s or TalkBackTime’s fault or negligence, such causes including, but without being limited to, labor disputes; power failures; service interruptions; riots; civil unrest; terrorist or criminal actions; and/or government action.
- Assignment. You may not assign this Agreement, and any assignment in violation of this provision shall be null and void.
- Independent Contractors. Your relationship with Creator is strictly that of an independent contractor. No employer and employee relationship exists between the parties, either under common law or any statute. This Agreement does not create any actual or apparent agency, partnership or joint venture, franchise or other association between you and us. No party is authorized to enter into on behalf of or to commit the other to any agreements, and no party shall hold itself out as the agent or legal representative of the other.
- Miscellaneous. This Agreement sets forth the entire understanding between you and Creator with respect to the subject matter hereof and supersedes any prior or contemporaneous communications, representations, or agreements, whether oral or written, between you and Creator with respect to such subject matter. If any part of this Agreement is found to be unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of remaining provisions. The decision not to pursue legal action for any violation of this Agreement shall not be construed as a waiver of any provision of this Agreement or any of Creator’s or TalkBackTime’s legal rights. Similarly, the failure by Creator or TalkBackTime to exercise or enforce any right or provision set forth herein shall not constitute a waiver of such right or provision.
13. Contact the Creator.
If you have questions about a Survey, the Services, or this Agreement, please contact the Creator by replying to the email inviting you to respond to the Survey and/or by using the contact information made available on the Survey.