PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE REGISTERING TO USE GORKANA SURVEYS, YOUR REGISTRATION INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS.
These Terms and Conditions constitute the entire agreement (the “Agreement”) between you (“you” or “Customer”) and BHP Labs LTD (“Gorkana Surveys”), registered office Units 3 & 4, Shelley Farm, Shelley Lane, Ower, Hampshire, SO51 6AS, United Kingdom, +44 (0) 0207 1939 884, for the use of Gorkna Survey’s self service quantitative market research tool (the “Real time Surveys”) accessible on its website www.gorkanasurveys.com. The Service is provided to you in accordance with this Agreement and any other applicable rules and policies set forth on the website.
1. The Service. The Service allows you to create individualised Real time Surveys via the Gorkana Surveys website, and obtain results to your Real time Surveys from participants visiting the Gorkana Surveys network of member sites (the “Partner Sites). You are solely responsible for all of the content of the Real time Surveys you create on the Gorkana Surveys 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 questions and responses, information, messages or other materials communicated, submitted or transmitted by you or respondents of your surveys through the Service (collectively, the “Customer Content”). By using the Service, you grant Gorkana Surveys the right to reproduce, publish, display and distribute your Real time Surveys on our Partner Sites”. You acknowledge and agree that Gorkana Surveys does not warrant participation in Real time Surveys or participation rates and that participation rates may vary drastically depending on content, placement and audience. Gorkana Surveys shall bear no liability in the event that the participation is lower than requested, except that, if you prepay to receive results to your Real time Surveys from our Partner Sites and the participation of Respondents is less than 50% of the number of respondents selected by you from Gorkana Survey’s panel during the time frame specified in the applicable purchase order, you may receive a credit to your account by emailing [email protected]. Once your Real time Surveys has been posted our Partner Sites, you will not be able to make any further modification (surveys definition, images etc…). The results of your Real time Surveys will be accessible directly on the Website www.gorkanasurveys.com. Results to Real time Surveys are stored on the Website and will remain accessible until you remove your account. Notwithstanding the foregoing, Gorkana Surveys reserves the right to reject or remove any Real time Surveys at any time, where it has reasonable ground to believe that the content of a Real time Survey does not comply with the terms of this Agreement or any applicable legislation or regulation.
3. Payment. The price of the Service shall be the fee quoted on the website www.gorkanasurveys.com. All fees quoted include Value Added Tax, sales tax and/or any other required taxes or duties where applicable. The services must be purchased in the form of a payment via credit card, you hereby warrant that the credit card information provided is correct, and you shall promptly notify Gorkana Surveys of any changes to such credit card information. You acknowledge and agree that if your credit card payment cannot be processed for any reason, Gorkana Surveys will not post your Real time Survey. You are responsible for all charges associated with your use of the Service as notified in your account and you agree to pay all such charges, including any applicable taxes, at the rates effective at the time they are incurred. Gorkana Surveys may change such fees at any time and in its sole discretion.
3a. Refund. If a survey does not complete within 10 days from the date it was launched, Gorkana Surveys will consider the target number of participants to be unreachable and the survey incomplete. You will receive an email notification and will be eligible for a refund if your survey did not reach 50% of the desired number of participants. The refund will be calculated based on the difference between the desired number of participants and the actual number of participants.
3b.Refund for screened out respondents. If a survey is submitted and the number of respondents that are screen out of the survey, due to the addition of a screening question, exceeds the number that a user expects Gorkana Surveys will not be expected to make any refund or held accountable for any refund.
3b.Right to give refunds. Gorkana Surveys reserves the right to give refunds to any user for whatever reason and whenever it is deemed appropriate or necessary by Gorkana Surveys.
3d.Cancellation. Gorkana Surveys is a real time service, often delivering your results within minutes. For this reason, once you have submitted your survey and paid for it, it cannot be cancelled. If you terminate your survey before it has completed you will not be entitled to a refund.
3e. Moderation and Editing. Gorkana Surveys reserves the right to moderate and edit surveys to make them appropriate for our partner network and / or to ensure that surveys adhere to best practice.
4. Prohibited Uses. Customer hereby agrees not to access and/or use the Service: (i) to send any unsolicited email or any commercial message or invitation; (ii) to request, collect, store and/or disclose personally identifiable data from survey respondents or to violate any applicable privacy law; (iii) to communicate any message or material that is deemed harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically or otherwise objectionable, hateful, tortuous, libellous, defamatory, slanderous or otherwise unlawful; (iv) in a manner which infringes any patent, trademark, copyright or other intellectual property rights of any third party; (v) in a manner which violates any applicable laws, rules and regulations; or (vi) in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any applicable law or regulation. Although Gorkana Surveys is not responsible for any such content or communications, Gorkana Surveys 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 Gorkana Surveys may become aware, at any time and without notice to Customer. Customer further acknowledges and agrees as follows:
a. Gorkana Surveys does not control the Customer Content and makes no representation or warranty regarding its accuracy, integrity or quality.
b. Customer 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 Gorkana Survey’s technology.
c. Customer 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. Customer shall not use the Real time Surveys 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 Gorkana Surveys 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. Customer 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 Gorkana Surveys, and Gorkana Surveys 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”). Customer must ensure that whenever the research findings are communicated to clients, customers, employees, survey respondents or otherwise published, Gorkana Surveys is credited for all research as “Real time Surveys, powered by Gorkana Surveys”.
f. Customer may not assign, transfer resell, distribute or otherwise use the Service except as agreed herein.
g. Customer shall not access and/or use Real time Surveys in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Service or any networks or security systems of Gorkana Surveys.
You acknowledge and agree that any violation of any of the foregoing will constitute a material breach of this Agreement. In such event, Gorkana Surveys 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 Gorkana Surveys resulting from or arising out of your non-compliance. You further acknowledge and agree that Gorkana Surveys may cooperate with any governmental authority in connection with any investigation into your use of Real time Surveys, including use in contravention of applicable laws, and may, in accordance with applicable laws, disclose any Customer Content, and any other information pertaining to you or to your use of Real time Surveys, to such governmental authority in connection with any such investigation.
h. Customer agree to allow BHP Labs’s to pass registration details to Gorkana Ltd for the sole purpose of administering accounts.
5. Intellectual Property Rights. As between Customer and Gorkana Surveys, Customer shall own all right, title and interest in and to any Customer Content if they requested “owned” during the set-up of their Real time Survey. If Customer requested “licensed” during the set-up of their Real time Survey, exclusive right, title and interest will be owned by Customer for three months. After three months Gorkana Surveys will share the right, title and interest in the customer content. During the term of your Subscription, you grant to Gorkana Surveys a limited, non-exclusive, royalty-free license to host the Customer Content solely for all reasonable and necessary purposes contemplated by this Agreement. Gorkana Surveys, 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 this Agreement. Gorkana Surveys 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 this Agreement. 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 Gorkana Surveys or its licensors.
6. Term and Termination. This Agreement shall automatically become effective upon your first use of Gorkana Survey’s Real time Surveys and shall continue until it is terminated in accordance with this Agreement. You may terminate this Agreement by emailing Gorkana Surveys a [email protected], and the Agreement will terminate immediately after Gorkana Surveys has received said notice. Gorkana Surveys may terminate this Agreement 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 this Agreement or contravene any applicable law. Upon any termination of the Agreement, your rights to use the Service shall cease immediately, your account will be deactivated and Gorkana Surveys shall have no obligation to retain, forward or make available to you any Real time Surveys 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).
7. Indemnification. Customer shall, at its sole expense, indemnify, defend and hold Gorkana Surveys, 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) Customer’s 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) Customer’s breach of this Agreement.
8. DISCLAIMER OF WARRANTIES.TO THE FULL EXTENT PERMITTED BY LAW, GORKANA SURVEYS 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 GORKANA SURVEYS MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES GORKANA SURVEYS 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 GORKANA SURVEYS 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.
9. LIMITATION ON LIABILITY.TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL GORKANA SURVEYS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER DAMAGES RELATED TO THIS AGREEMENT, 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 GORKANA SURVEYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GORKANA SURVEY’S LIABILITY HEREUNDER IS LIMITED TO £1,000 OR THE AMOUNT OF FEES PAID TO GORKANA SURVEYS BY CUSTOMER HEREUNDER, WHICHEVER IS LESS. NO ACTION ARISING OUT OF THIS AGREEMENT (OTHER THAN AN ACTION BY GORKANA SURVEYS FOR THE RECOVERY OF FEES OWED) MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION FIRST AROSE.
11. Applicable law and jurisdiction. English law shall govern this Agreement. Any dispute or claim arising out of or in connection with this Agreement shall be settled by the courts of England.
12. Additional Terms.
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 Agreement without the consent of any third party or breach of any contract or agreement with any third party.
b. Assignment. Customer may not assign its rights or delegate its duties under this Agreement 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 the Agreement 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. Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties hereto. The failure of either party to seek relief for the other party’s breach of any duty under this Agreement shall not waive any right of the non-breaching party to seek relief for any subsequent breach.
e. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the others shall remain in full force and effect.
f. No Third Party Beneficiaries. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.
g. Neutral Construction. The parties agree that this Agreement shall be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement 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 Agreement acknowledges that this Agreement constitutes the entire Agreement of the parties with regard to the subject matter addressed in this Agreement, that this Agreement supersedes all prior or contemporaneous agreements, discussions, or representations, whether oral or written, with respect to the subject matter of this Agreement, and that this Agreement cannot be amended except by a writing signed by all parties hereto. Each party to this Agreement 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 Agreement by said party, and each party acknowledges that it has not executed this Agreement 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 Agreement, and shall not be used in interpreting or construing this Agreement.